








TO THEIR WORKMEN FOR ACCIDENTS INCURRED IN 


THE COURSE OF THEIR EMPLOYMENT 


AND 


STATE REGULATION OF DANGEROUS INDUSTRIES. 


DISSERTATION IN PART FULFILLMENT OF THE CONDITIONS NECES- 
SARY FOR THE ATTAINMENT OF THE DEGREE OF DOCTOR 
OF PHILOSOPHY, SCHOOL OF POLITICAL SCIENCE, 


COLUMBIA COLLEGE. 


BY 


W. IRVING TAYLOR, A. M., LL. B., (cum laude), MEMBER OF THE 
New YorkK BAR. SELIGMAN FELLOW. 


VANDEN HOUTEN & CO., PRINTERS, 
45 Liberty Street, N. Y. 


Re ahd 


aoe 





KMP Return this book on OF before the 
Latest Date stamped below. 
Theft, mutilation, and underlining of books 
are reasons for disciplinary action and may 
T result in dismissal from the University. 
O THEIR University of Illinois Library 
IN 


THE 





yy 30 65 


STATE REG| 


DIssERTATION IN 
SARY FOR TH! 


OF PHIL 


W. IRVING TAYL 
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L161 0-1096 


VAN 
DEN HOUTEN & CO., PRINTERS 
45 Liberty Street, N. Y. | 


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5 hy oh al 


BMC LOY ERS LIAPILITY 


TO THEIR WORKMEN FOR ACCIDENTS INCURRED IN 
THE COURSE OF THEIR EMPLOYMENT 


AND 


STATE REGULATION OF DANGEROUS INDUSTRIES. 


DISSERTATION IN PART FULFILLMENT OF THE CONDITIONS NECES-* 


SARY FOR THE ATTAINMENT OF THE DEGREE OF DOCTOR 
OF PHILOSOPHY, SCHOOL OF POLITICAL SCIENCE, 


CoLuMBIA COLLEGE. 


BY 


W. IRVING TAYLOR, A. M., LL. B., (cum laude), MEMBER OF THE 
NEw YorK BAR. SELIGMAN FELLOW. 


VANDEN HOUTEN & CO., PRINTERS, 
45 Liberty Street, N. Y. 


A Se 





An”. 


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/ 
re, 


2¥ bot oS 


emp Ee Oro e ONDE INTIS. 


CHAPTER I. 


Common Law ExXcLusIvE oF Co-SERVICE. 


General remarks ; bibliography, 
General rule as to employer’s liability, 


What are ordinary risks, 


- Master’s duties as to safety of plant, etc., 


Not bound to provide latest improvements, 
Criticism, 

Risk not taken account of in fixing wages, 

Servant must exercise discretion, 

Liability of contractors, 

Servant must be free from contributory negligence, 


Ignorance of a fact that could be known will not excuse 
employer, 


Servant with equal knowledge with master assumes risk, 
Neglect to fence machinery not negligence, 

General principles, 

Criticism of doctrine of waiver, 

Delegation of power by master, 


Failure to comply with statute negligence per se, 


PAGE. 


Extent of master’s duty, 
Mastevr’s duty as to rules, etc., 
How master ean escape liability, 


Criticism, 


CHAPTER II.—DoctTRINE oF Co-SERVICE. 


Respondeat Superior, 

History of doctrine of co-service, 

Master does not guarantee competency of workman, 
Departments of service, 

Negligence of workmen, 

Who are fellow-servants, 

Criticism, 

Tendency to relax the rule, 

Superior servants and superintendents, 


The ‘‘ public policy” of doctrine of co-service, 


CuHapter II1I.—Statutory PROovIsIons. 


Necessity of considering statutory provisions, 
Legislation affecting railroading, 

Legislation affecting mining, 

Legislation affecting factories, 


Legislation affecting navigation, 


Statutes must explicitly repeal the common law in order 


to change the rule, 


Statutory changes in doctrine of co-service, 


26 
27 
27 
28 


30 
30 
31 
33 
34 
36 
38 
42 
Ad 
46 


47 
49 
57 
60 
65 


69 
10 


se Be 


Cuaprer LY.—TuHe Law In European States. 


General remarks, 
ENGLAND. 


The Employers’ Liability Act, 
The Foreign Office Circular, 


FRANCE. 
Questions still regulated by Code Napoleon, 


Proposed changes, 


Answers to Questions in Foreign Office Circular, 


GERMANY. 
The Haftpflichtgesetz, 
The Unfallversicherungsgesetz, 
Criticism, 


Answers to questions in Foreign Office Circular, 
AUSTRIA. 


History of proposed measures, 
Analysis of proposed legislation, 


The act of December 28th, 1887, 
ITALY. 


The demand for legislation, 
Proposed measures, 
Proposed governmental changes, 


Workmen’s National Insurance Act, 


(7 


78 
80 


82 
85 
87 


90 
90 
92 
93 


96 
97 
100 


102 
102 
105 
106 


Pape 
National Workmens’ Pension Act, 
Answers to questions in Foreign Office Circular, 
Objections to proposed measures, 


Act respecting sailors, 


BELGIUM. 


Still regulated by Civil Code, 
Agitation on subject of reform, 
NETHERLANDS. 
Act respecting sailors, 
SWITZERLAND. 


Answers to Foreign Office Circular, 
Proposed changes in the law, 


Concluding remarks, 


108 
111 
113 
114 


115 
115 


118 


119 
121 
122 


CHAPTER I. 
EmpuLovers’ LIABILITY. 


Perhaps no doctrine of our legal system has been more 
often affirmed and universally followed by the Courts, and, at 
the same time, more bitterly criticised and universally con- 
demned by those adversely affected by it, than the principle 
that an employer, who is without personal fault, is not 
liable to his workmen who are injured in his service. The 
feeling of dissatisfaction with this doctrine has grown with the 
development of manufacturing industries, and the introduction 
of machinery, until the sentiment has been strong enough in 
some States to effect a reform in the law, and to thoroughly 
agitate the question in other jurisdictions. 

The question is one of considerable consequence to the wel- 
fare of the community ; the statistics of accidents, imperfect 
though they be, show that yearly thousands of workmen are 
killed or injured, and the records of the Courts reveal the fact 
that, under our present system, but asmall percentage of these 
can obtain compensation for their suffering. The discussion 
of the question is complex, and attended with embarrassments 
and difficulties. It is a matter that must be approached sys- 
tematically, although at the risk of dryness, yet we trust that 
the problem will be of sufficient interest to command a patient 
investigation. But little has been written on the subject in 
this country ; a report of the Massachusetts Labor Bureau, 
and an article in the Harvard Law Review constituting the 
whole of the American bibliography of the subject so far as 
known. 

In order to properly understand the criticisms recently 
made upon the law respecting employers’ liability for accidents 
to their workmen, and the changes recently made therein, it 
will be necessary, in the first place, to consider what that re- 
sponsibility was at common law, before any statutes had been 
passed upon the question. This subject has been divided into 


a a 


two sections for convenience of treatment, since somewhat dif- 
ferent legal principles and rules prevail in each. In the first 
place, an endeavor will be made to present the liability for 
injuries, caused otherwise than by neglect of co-servants, and 
in the second, the doctrine of co-service will be considered. 


EMPLOYERS LIABILITY AT Common Law. 


(a) For InsuRieEs CAUSED OTHERWISE THAN BY NEGLECT OF 
Co-SERVANTS. 


It is a great fundamental rule of the Common Law of 
England and America, that when a servant, under which name 
the law classes all employees, enters into the employment of 
another, he assumes all the dangers ordinarily attendant upon 
the occupation. The presumption of the law is that, as every 
man is presumably alive to his own interests, and the dangers 
that beset him, he can safely be left to take care of himself, and 
make his own bargains. He is therefore considered, as a 
reasonable and prudent man, to have contracted with reference 
to the ordinary dangers of the business into whic he enters, 
and to have taken the risks to which he is liable to be exposed 
into account in fixing the amount to be received as compensa- 
tion or wages.” 

This rule has been affirmed in numerous cases, but an ex- 
tract from the opinion in the case of the Nashville, &e., R. R. 
Co. vs. Elliott,} will serve to show the course of judicial reason- 
ing. McKinney, J., in delivering the opinion of the Court in 
this case, used the following language: “ The servant, on enter- 
ing the service, knows or ought to know that there are extraordi- 
nary dangers inseparable from such service, which human care 
and foresight cannot always guard against. He is not bound 
to incur these known perils, incident to the service, and may 
refuse to do so; or he may, so far as can be done, provide for 





* The R. R. Co. vs. Flanigan, 77 Ill., 365; Patterson vs R.R.Co., 76 Penn. 
St., 389; R. R. Co. vs. Jones, 2 Head (Tenn.) 517; Strahlendorf vs. Rosenthal, 
30 Wis., 674; Noyes vs. Smith, 28 Vt., 59; Lansing vs. N. Y. C. R. R. Co., and 
many other cases. 

+ 1 Coldwell (Tenn,) 612. 


es Qo: 


them in the rate of compensation or otherwise. ‘ But if he vol- 
untarily engages to serve, in view of all the hazards to which 
he will be exposed, it is well settled that between himself and 
his employer he undertakes to run all the ordinary risks of the 
service, and this includes not only the risk of injuries from his 
own want of skill or care, but likewise the risk of injuries from 
the negligence of his fellow servants.” 

Such being the view held by the Courts, it of course became 
necessary for them to determine what are the ordinary risks 
that the servant is presumed to run, and what are the duties, 
if any, that the master owes to his servants. The determina- 
tion of these questions has given rise to a constantly increas- 
ing number of decisions, defining and enforcing these risks and 
duties. It may be said in very general terms, that the rule 
mentioned above does not apply to those cases where the risk 
is not of such a nature as to be considered to be reasonably 
known and assumed, to those in which the risk is not incident 
to the service, to those in which the risk is known to the mas- 
ter but not to the servant, or where the master is under a posi- 
tive duty, and the injury is caused by the neglect of that duty, 
nor to those in which the injury is incurred through the negli- 
gence of the master when the servant is free from contributory 
negligence. 

Thus, to state more specifically the rules elaborated by the 
decisions, a master is bound to exercise the care of a reason- 
able man to prevent the happening of accidents and injuries to 
his employees when engaged in his business. He is held 
bound to provide safe and suitable materials, implements, and 
machines, and to keep the same in good repair. A failure in 
either respect would be an act of negligence on the part of the 
employer, that would entitle the injured servant to a recovery, 
provided he had not by his own negligence contributed to his 
injury. Ina Massachusetts case the learned judge, after stat- 
ing the general rule that the servant assumes the ordinary risks 
of his employment, proceeds to say: “On the other hand the 
master is bound to use ordinary care in providing suitable 
structures and engines, and proper servants to carry on his 
business, and is liable for any negligence in this respect, if he 


ead, (pak 


knows, or, in the exercise of due care might have known, that 
his servants are incompetent, or his structures or engines in- 
sufficient, either at the time of procuring them, or at any sub- 
sequent time, he fails in his duty.”* 

But this rule has not been interpreted to mean that the 
master is under any duty to procure the latest improvements 
in machinery and tools, nor that he is liable in damages for 
any accident that might not have happened if such improve- 
ments had been used. It only holds that the plant and imple- 
ments employed must be reasonably safe and suitable: accord- 
ingly it has been held that a railroad company is not obliged 
to use the most approved form of buffer, which renders less the 
danger of coupling cars, if the ones in use were of the ordinary 
pattern, and not defective in construction.t 

So in Salters vs. Delaware and Hudson Canal Co., in the 
third of Hun (N. Y.), it was held that a railroad company is 
under no obligation to use “target switches ”’t upon its track 
for the protection of employees, if the common switches in use 
are adequate and sufficient. And in Piper vs. N. Y.C. BR. BR. 
Co., it is held that “ If a common switch is properly cared for, 
it is as safe as any other,” and the fact that the master has re- 
placed the common switch by a patent and improved kind, after 
the accident, is no evidence to show previous negligence. So 
in Wonder vs. B. & O. R. RB. Co., § where a brakeman was thrown 
from the top of a car and dragged a considerable distance, suf- 
fering severe injuries, in consequence of the use of a brake to 
which the chain was fastened by means of a hook instead of 
an eye-bolt; the Court held that in absence of evidence show- 
ing that the fact of using such a brake was per se negligence 
on the part of the defendant, no recovery could be had, Mr. 
Justice Alvey saying: “It is now settled that there is no con- 
tract obligation imposed upon the master, from the mere rela- 
tion that he bears to the servant, to provide machinery of any 





*Arkeson vs. Dennison, 117 Mass., 412, citing Gilman vs. R. R. 13 Allen, 
140. 
+ R. R. Co. vs. Flanigan, 77 Ill., 365. 
{ This is now required by statute. 

§ 32 Md,, 411. 


oe ae 


particular character or description to be operated by the 
latter ; nor is there any implied understanding on the part of 
the former resulting from the mere relation as employer, that 
the machinery shall be kept free from defects such as may 
expose the servant to danger. The servant is a free agent to 
select the employment into which he enters, and in contracting 
for the wages he is to receive, must be supposed to take into 
account the risks to which the employment may expose him.” 

We may pause here a brief space to consider the rule here 
presented and to enquire whether or not, as is claimed by the 
workpeople, it is cruel and unjust. Statistics of accidents 
show that a large proportion are incurred in the railway or 
other enterprises requiring the use of dangerous machinery. 
It is to be expected that a majority of the deaths and injuries 
in such employments should happen to the employees. The 
official statistics are here of little value, since the returns are 
very loosely made by the corporations themselves, and because 
of the lack of any uniformity in considering what shall be re- 
turned as an accident. Some corporations think that nothing 
short of the loss of a limb is of sufficient importance to be 
mentioned. However a glance at the.official returns and also 
at the causes of accidents mentioned in the litigated cases will 
reveal the fact that the greatest number of the deaths and 
accidents of workmen are due to the use of antiquated and 
dangerous appliances. Nearly all of these casualties are pre- 
ventable by the use of modern and improved devices. The 
Courts may hold, as was the case in New York, that ‘‘a com- 
mon switch is as safe as any other,’ but common experience 
as well as common sense disregards this dictum. 

We may well doubt, on ethical grounds, whether any 
employer engaged in a dangerous occupation for his own gain, 
has the right to endanger the safety of his employees, when he 
has the power to provide for their security. ‘The discoveries of 
Science and the progress of civilization are daily adding to 
human security and rendering many occupations innoxious that 
were formerly fruitful sources of suffering. It seems unjust 
that those who are employed in occupations that are danger- 
ous to life and health but nevertheless necessary to the wel- 


LIBRARY 
UNIVERSITY OF ILLINOIS 


ad 


fare of society should be deprived of the benefits and security 
to be derived from increased knowledge and advanced civiliza- 
tion. Society should not make martyrs of its faithful servants, 
but should, on the contrary, extend to them all the protection | 
and assistance consonant with justice and the general welfare. 

This seems to be a proposition that every fair minded 
man must concede to be just, but there is great difficulty in 
finding legal ground for enforcing it. It may be an ethical 
obligation, but it is not yet a legal one; nor can it ever be a 
part of the common law. That system looks at all questions 
presented to it for solution as either torts or contracts. Every 
cause of action, to use a familiar legal maxim, arises either ex 
contractu or delicto. That failure to provide improved applian- 
ces is nota tort, or wrong in its legal sense, is of course at once 
evident. To constitute a tort two things must concur, actual 
or legal damage to the plaintiff, that of cause is present in case 
of personal injury or death, and a wrongful act committed by 
the defendant, which is wanting, as there is no duty to provide 
appliances that might prevent accident. The plaintiff cannot 
recover, thus, on the theory of tort, since one of the elements 
of tort is lacking, and he is further met by the legal maxim 
that ex damno sine injuria non oritur actio. 

Nor can he base his suit on the theory of contract, since 
the cases hold that there is no contract obligation imposed 
upon the master from the mere relation that he bears to the 
servant to provide machinery of any particular character or 
description. There is no foundation, consequently, in the 
common law system for an action for such an injury. 

It would undoubtedly be also unjust to hold the contrary 
and establish a general rule of law, applicable to all kinds of 
industries and relations, that a master is under a duty td 
provide the latest improvementsin plant and appliances. Such 
a method would impose an intolerable burden on many and 
discourage capitalists from putting their money into enterprises 
in which they would be at the mercy of any inventor who 
chooses to make an appliance capable of being used therein. 

But there exist certain industries such as railroading, 
mining and certain manufactures that are more than ordinarily 


Wi 3 (3 ea 


hazardous at the best. Society has a right to regulate such 
industries and provide for the safety of its members employed 
therein : it is a part of that socialistic end of government, here- 
tofore but comparatively little considered but doubtless des- 
tined to have a large development. Many such trades have 
been regulated by special statutes, both in this country and 
abroad, that have been found to be satisfactory in their oper- 
ation. ‘These we shall consider at a later stage and shall only 
say here in passing from this topic, that the common law rule, 
although apparently harsh in certain instances, is logical, 
technically consistent and is in fact the only just one, since its 
converse would make perhaps greater hardship. Any change 
must be in the direction of special legislation regulating partic- 
ular industries. 

Another point open to attack is the statement made in 
nearly all the cases, and underlying the whole law on this sub- 
ject, namely, that the workman is compensated for his risk in 
the wages he receives, or if he is not it is his fault since he can 
demand such compensation and refuse to labor without it. 

The judges endeavor to tell us here what elements deter- 
mine the rate of wages. This is the province of the political 
economist rather than of the jurist, and the question is solved 
by a long and careful study of the relative condition, strength 
and need of the employing and employed classes. Theoreti- 
cally there are many considerations that may enter into the 
determination of this question. Thus there are causes inher- 
ent in the nature of the employment, such as the dignity, 
health and cleanliness of the occupation: the time and labor 
required to acquire a knowledge of it, the confidence, trust and 
responsibility reposed, the chances of success, the experience 
acquired and doubtless theoretically the danger or risk in- 
curred should also be a factor in this calculation. 

Such are the theoretical but unfortunately not the practical 
elements of which the compound wages, is composed. These 
all suppose the contracting parties, the person seeking employ- 
ment and the employer giving it, as standing on an equality, 
that in fact never exists. The suppliant is ever at the disad- 
vantage ; and add to this fact the other that the employer, the 


ra aoe 


capitalist, by reason of his greater wealth and credit can better 
refuse to hire than the laborer, destitute of everything save his 
capacity for manual labor, can to work, and the fallacy of 
considering the wage seeker as entirely a free agent and fully 
able to contract on equal terms with the wage giver is clearly 
apparent. 

In point of fact experience as well as political economy 
teaches us that the rate of wages is determined by the relation 
of demand to supply in the same manner as the price of wheat 
or any other commodity in the market is determined. If there 
is more demand for labor than there are laborers to supply 
that want, then the position of the laborers is the stronger and 
they can stand for their rights and increase their wages. But 
this is a state of affairs that seldom happens, and, owing to the 
mobility of labor never endures for any length of time in any 
particular place. 

In point of actual experience those engaged in dangerous 
employments do not receive higher wages than those who are 
not so employed. For illustration, the Committee of the 
English Parliament examined this question, taking the testi- 
mony of various employers and men of large business experi- 
ence. The investigation revealed that the dangerous character 
of the employment had little effect upon wages. A Sommer- 
setshire collier working in an employment more than ordinarily 
dangerous, receives 3/ 6d. per day, while a joiner, whose occu- 
pation has in it little of attendant danger, receives 5/ a day. 
On the English railways the shunter (i. e. the man who 
couples the cars) receives from 20 to 80/ per week—less than is 
received by any other employee—notwithstanding the fact that 
his position is perhaps the most dangerous of any in the rail- 
way enterprise. A “green” shunter, one who has just begun 
the work, receives from 20 to 22/, while an experienced 
shunter, who is more useful and less careless, receives on an 
average of from 25 to 30/ a week. Both receive less than a 
porter, whose business is less dangerous. 

Mr. Frederick W. Evans, General Secretary of the Amalga- 
mated Society of Railway Servants of Great Britain, in his 
testimony ‘before the Parliamentary Committee in 1876, said, 


Bia flan 


in reference to the theory that the risk of injury is compen- 
sated in the wages received: “It has been asserted that men 
are paid higher wages in proportion to the risk they run. 
Nothing could be more inaccurate. In dangerous occupations 
on railways the risk is greatest when the experience is least, 
and when the rate of wages are lowest. Thus, the risk to a 
man just started at from 20/ to 22/ per week as a shunter or 
brakeman is greater than when, by length of service, he has 
attained to experience and the maximum wage of 25/ or 30/, 
respectively. Again, the highest wages are not paid to the 
class of servants who in the performance of duty run the 
ereatest risk. Thus, the shunter, whose duties are by far the 
most dangerous, receives less than the driver, than the goods 
guard, than the passenger guard, and sometimes than the 
signal-man. The highest wages are given to those classes 
whose experience is gained by long service, and whose duties 
are responsible. It is in the interest of the companies to 
induce these men by offers of higher wages to remain in the 
service. If they become migratory, the work of the lines 
would be carried on at a greater risk, inconvenience and loss 
to the proprietors. I am, therefore, of opinion that in the 
consideration of the liability of railway companies to their 
servants for injuries, it cannot be maintained that higher wages 
are paid to cover greater risks.” 

The judges who announced this theory of compensation for 
risks were, it must be owned, ignorant alike of the principles 
of Political Economy and the practices of the business world, 
but, happily for the stability of the law, this theory is not vital 
to the existence of the rule. : 

To return to a further consideration of the law. Although 
the master is bound to use reasonable care for the protection 
of his servants, the servant on the other hand must exercise his 
judgment and skill to protect himself. He cannot claim dam- 
ages for an injury where it might have been avoided if he had 
himself exercised reasonable care. Thus, where a servant was 
ordered by his master to carry heavy sacks of grain up a ladder 
which the defendant well knew to be defective and rickety, 
and injury was caused thereby to the plaintiff, it was held that 


Di ae 


an averment of notice of the defective condition of the ladder 
on the master’s part was immaterial as the servant should have 
exercised his discretion and refused to have mounted the 
ladder. After he had mounted it, knowing its condition, the 
law may suppose that he assumed the risk.* 

If the employer fails to keep his premises in a reasonably 
safe condition he is liable to a servant for all injuries resulting 
from such defects, unless they arise or are not repaired 
in consequence of the negligence of a co-servant. But when 
the defects are patent and obvious and the servant goes into 
the service knowing that the machines and instrumentalities 
employed in the business are unsafe and dangerous, he as- 
sumes the risk and cannot hold the master liable for injuries 
resulting from these defects. Baron Bramwell, in the English 
case of Dynen vs. Leach,t says: ‘‘It may be inhuman so to 
carry on his works as to expose his workmen to constant peril 
and risk of their lives, but it does not create a cause of action 
for any injury which it may occasion, when the workman knew 
all the facts and is as well acquainted as the master with the 
nature of the machinery and voluntarily uses it.” But, if the 
machinery, premises or implements are obviously defective but 
not apparently or necessarily dangerous, the master is held, 
in a Scotch case, to ascertain as to the danger before he sub- 
jects his workmen to the possible risk of injury. 

In general a contractee is not liable for injuries to the ser- 
vants of a contractor, while they are in the employment and 
under the control of the latter ; but if the work is to be done 
upon the contractee’s premises, he is under the same duty and 
obligation to keep them in a reasonably safe condition, as he 
is to his own servants, and is answerable in damages to the 
servants of the contractor for any injury occasioned by the 
breach of said duty. This obligation does not arise out of the 
contract, but it is a duty that the law casts upon a master to 
provide proper and safe premises and appliances, and to keep 
the same in a reasonably safe condition. This duty extends to 


* Potts vs. Plunkett, 9 Irish C. L. Q. B., 290. 
+ 26 Law Journal. 
t Stark vs. McLaren, 10 Ct. of Sess., (Scotch), (3d Series), 31. 


SN Vy as 


the servants of a contractor as well as to his own immediate 
employees. Thus, in the case of Coughtry vs. The Glove 
Woolen Company,” plaintiff's intestate was in the employment 
of certain carpenters who contracted with the defendant cor- 
poration to put a cornice upon its mill, the defendant agreeing 
to provide all the scaffolds required for the purpose. The de- 
ceased was killed by a defect in the scaffolds. The lower 
Court dismissed the complaint, but the Court of Appeals, upon 
the ground that the scaffold was erected by the defendant upon 
its own premises for the use of the contractor’s workmen, de- 
cided that a duty existed on the part of the defendant in be- 
half of plaintiff's intestate, and reversed the decision of the 
Court below. But this must be understood to be the rule only 
where the contractee owes a duty to the contractor’s servants 
and is limited to defects upon the formers premises. Thus, 
where a contractee agreed to furnish appliances for work not 
connected with his premises he could not be held liable. 
The servant’s remedy in such a case is against his own em- 
ployer, the contractor. 

As a broad general rule, where a servant seeks to charge 
his master in damages, he must prove that the injuries com- 
plained of were sustained through the negligence or fault of 
the master alone.t ‘The proposition may be stated broadly, 
that in no case can the master be held chargeable for an injury 
resulting to his servant from defects in the machinery or other 
appliances of the business, unless negligence or fault can be 
imputed to him.{ | 

This negligence, whether actual or constructive, must be 
personal, and the degree of care required of the master 
depends upon the nature and character of the business. The 
care must be proportionate to the risk to the servants, by © 
reason of faulty or defective appliances, and must continue as 
long as the implements are in use. “It is the duty of every 
employer,’ says the Court in Buzzel vs Laconia Mfg. Co.,§ 


* 56 N. Y., 124. 

+ Ryan vs Fowler, 24 N. Y., 410. 

{ Wood on Master and Servant, p. 705. 
§ 48 Me., 113. - 


tee 


“to use reasonable precaution for the safety of those in his 
employment, by providing them with suitable machinery and 
keeping it in a condition not to endanger the safety of the employed : 
and by the same reasoning, bridges, passageways or ladders, 
necessary to be used in going to or returning from labor, 
should be kept safe and convenient by the employer.” The 
same principle governed the decision in the case where injury 
was caused by the fall of a telegraph pole, sound when set, 
but decayed afterward at the butt, which fact might have been 
ascertained by inspection ;* and also in the case of a bridge 
originally safe, but subsequently becoming unsound.t 

The mere plea that the master did not in fact know of the 
defect that caused injury to the servant, will not avail to 
screen him from liability. If by the exercise of ordinary care 
he might have known it, the law casts upon him the duty of 
knowing it. Itis his duty, legal as well as moral, to be ad- 
vised, and not to subject his employees to needless peril. The 
master, in general, has better facilities than the servant for 
ascertaining such defects, and it is therefore reasonable and 
just that the duty of precaution should fall upon him. It was 
held in a Connecticut case, that a servant might maintain an 
action against his master for an injury caused by defective 
machinery, when the employer knew or ought to have known 
its condition, and the servant did not know it or have equal 
means of knowing it, and therefore could not have been re- 
garded aS assuming this risk.} 

But if, however, the duty of inspection is intrusted to an 
inspector or superintendent, whom the master has used due 
care in selecting, most of the cases hold that the master will 
not be responsible for any injury to a servant, caused by the 
negligence or fault of such inspector or superintendent. For 
the injured servant and the superintendent are co-servants, and 
as we shall see later, the master is not liable to a servant for 
an injury caused by the fault of a co-servant. Mr. Justice 
Wagner says: “ Where injuries to servants or workmen hap- 


* Byron vs. State Printing Telegraph Co., 26 Barb., (N. Y.), 39. 
+ Harrison vs. Cent. R. R. Co., 31 N. J. L., 293. 
¢ Hayden vs. Smithfield Mfg. Co., 29 Conn., 548. 


Pies [9 ee 


pen through the negligence, misfeasance or misconduct of a 
fellow servant, no action therefore can be maintained against 
the master, unless the fellow-servant is not possessed of the 
ordinary skill and capacity in the business instructed to him, 
and unless his employment is attributable to the want of ordin- 
ary care on the part of the master.’”* This subject will be 
considered more in detail under the second head of the com- 
mon law liability, when the doctrine of co-service is presented. 
But this rule above given can only apply when persons charged 
with the inspection is a co-servant, and not a superior or 
representative of the master. In all such cases the rule 
seems to be uniform throughout this Country and England, 
but the courts have wavered much in their decisions as to who 
are superiors and co-servants. 

As we have seen, it avails a master nothing if he does not 
in fact know, but should have known of the defect that 
caused the injury, where that was possible by the exercise of 
due diligence. Isham, J., in Noyes vs. Smitht+ lays down 
the rule that “The servant has a right to understand that the 
master will exercise that diligence in protecting him from 
injury, and also in selecting the agent from which it may 
arise. It is only such injuries as arise after the exercise of 
that diligence that can properly be termed accidents or casual- 
ties, which the servant has impliedly agreed to risk, and for 
which the master is not liable.” 

If the servant have equal knowledge with the master of 
dangers incident to the work, the law presumes that he 
assumes these risks, and if the servant discover defects and 
still continues to work upon the defective material or machine, 
he is here too presumed to have assumed the danger.{ But 
where there are latent defects or risks which the master knows 
or is presumed to know, it is his duty to fully warn the 
servant of the dangerous nature of the employment he enters. 
Thus, in Spelman vs. Fisher Tron Co.,§ where the plaintiff was 


* Brothers vs. Carlter, 52 Mo., 375. 

7 28 Vt., 59. 

t R. R. Co. vs. Elliott, 1 Cold. (Ten.) 612, and many other cases. 
§ 56 Barb., 151. 


NS Fp ML 


employed by the defendant to do certain blasting for them, 
and was given a new and much more powerful kind of powder 
to use for this purpose than was in common use, and plaintiff 
being ignorant of the nature of said powder, and not being 
warned by defendant, suffered severe injuries, it was held that 
the defendant was under a duty to plaintiff to disclose the 
exceptional and dangerous character of the explosive. 

It was held in Sullivan vs. India Mfg. Co.,* that neglect to 
fence the ordinary machinery of the employment will not of its 
self make a master liable to a servant for a hurt preventable by 
such precaution. In that case Justice Devons used the fol- 
lowing language: “The only ground on which they (the de- 
fendants) could be held responsible was because they had been 
guilty of some negligence, thus failing in their duty to the 
plaintiff. Merely omitting to enclose the machinery could not 
be considered as such failure, the plaintiff having consented to 
work in the position in which he was exposed to the machinery 
in this condition.” But in case of ignorance or youth of the 
employee, the rule is different. “It may frequently happen 
that the dangers of a particular position for, or mode of doing 
work, are great and apparent to persons of capacity and 
knowledge of the subject, and yet a party from youth, inexpe- 
rience or general want of capacity may fail to appreciate them. 
It would be a breach of duty on the part of the master to ex- 
pose a servant of this character, even with his own consent, to 
such dangers, unless with instructions or cautions sufficient to 
enable him to comprehend them, and to do his work safely, 
with proper care on his own part.” 

The following general principles are deducible from the 
cases declaring the law on this subject. If the plaintiff, being 
of sufficient age and intelligence to understand the nature of 
the risk to which he is exposed and with full notice of the dan- 
gerous nature of the service which he undertakes, choose to 
contract to do it, he assumes the risk that is clearly within the 
scope of his employment, such as dangerous unfenced machin- 
ery, and his employer is under no obligation to indemnify him 


* 113 Mass., 396. 


i 9 fe 


against the consequences. It doubtless is the law that if a 
master employs inexperienced workmen and directs them to 
act under the orders of a deputy, they are acting under the ex- 
press orders of their master, and if he, by the carelessness of 
his deputy, exposes them to improper risks, he is liable for the 
consequences. Previous knowledge of a danger is not always 
a bar to recovery, but it is a strong presumption of negligence. 
The servant may show, to rebut this presumption, that he had 
reason to suppose that the danger had been removed or less- 
ened, or that the master had promised to repair the defect. So, 
also, the danger may even be patent and known to the servant, 
and the master still be liable to him for injuries; as where the 
master has lulled the servant into a sense of security by insist- 
ing that there is no danger, or where he promises to remedy 
the defect.* 

In order to imply that the servant assumes the risks, they 
must be the ordinary and patent dangers incident to the occu- 
pation. Itis a well established rule that as to latent dangers 
and those extraneous to the service the master is bound to 
warn his servant. In a case where the defendant employed 
the plaintiff as a carpenter to go on certain land claimed by 
defendant, to do certain work there, when defendant well knew 
that any such entry was likely to be prevented by violence, but 
plaintiff went on the land and was shot at and injured, Mr. Jus- 
tice Wallace said, “If he (defendant) knew or was informed of 
a threatened danger of that character, he was bound to com- 
municate the information to his servant about to be exposed to 
it in the course of his employment, and in ignorance of its 
existence.” t 

A master is not liable to his servant while using machinery 
in the employment of the master, if the servant has the same 
knowledge of the defects and the dangers incident to its use, 
as the master in the exercise of due care possesses, and if at or 
before the time the accident occurred there was nothing to indi- 
cate any danger such as demanded or suggested precautions 


* Torrent vs. Webb, Clark vs. Holms, 7 H. & N., 937. 
+ Baxter vs. Roberts, 44 Cal., 187. 


WS) te 


that were omitted. But an action will lie for injuries resulting 
from the negligence of the master in a matter in which, from 
the nature of the employment or from the custom and course 
of the business, the laborer had a right to rely upon the care 
or superior knowledge of the employer. A direction given to 
a foreman, that if followed would have prevented the injury to 
a workman, is not sufficient to exonerate the master.* 

As an illustration of how, although a master is bound to 
furnish reasonably safe implements for his servant’s use, the 
latter may, by consenting to work on material or with tools 
known to him to be defective, lose his right of action in case 
of accident, we will take the case of Sullivan vs. R. R. Co.t 
In this case the plaintiff at first refused to work on a bridge 
because of the insufficient and unsafe character of the mate- 
rials, but afterward consented and was thrown into the river 
and was drowned, it was held that no action could be brought, 
for the deceased had with a full knowledge of the risk as- 
sumed it. 

But this rule only applies to such defects as are patent; 
and not only the defects, but also the danger arising therefrom 
must be known to him, or the servant’s right of action re- 
mains. A servant is not bound to search for danger, except 
as to that which is ascertainable by ordinary observation; he 
has a right to rely upon the judgment of his master, and the 
presumption that he has done his duty to him in this respect. 
For injuries arising from latent defects, of which the master 
knew, or in the exercise of reasonable care might have known, 
he is liable, and that, too, even though the servant knew that 
the machinery or appliances were in a defective or dangerous 
condition, if the injury did not arise from such obvious defects. 
For the master is bound that the risks attendant upon the oc- 
cupation shall not be increased by latent defects that can be 
discovered by the exercise of reasonable care. In a Wisconsin 
case we find this language: ‘‘It is only such risks as are within 
the contemplation of the parties that the servant can be 


* Avilla vs. Nash, 117 Mass., 318. 
+ 9 Bush (Ky.), 81. 


al) ly 


charged with assuming, and if the master permits him to enter 
upon his work, when he knows that there are facts that en- 
hance the risk, or when he ought to have known, by the exer- 
cise of reasonable prudence, of the existence of such facts, he 
is chargeable with negligence as to all injuries that result to 
the servant in consequence of such latent hazards.’* 

Where a servant enters upon an employment that he sud- 
denly discovers to be dangerous, but in which a neglect to 
discharge his duty would also be dangerous, if he does pro- 
ceed, the knowledge of the risk coming upon him suddenly, 
he may recover notwithstanding the fact of his knowledge of 
the risk.t The question is whether the plaintiff acted as a 
man of ordinary prudence would do, or rashly and contrary 
to warning. 

A thing clearly discernable in the above cases is the facility 
with which a workman may lose his right of action by reason 
of the intervention of the technical legal doctrine of waiver. 
The common law, as is of course necessarily the case with 
every judicial system, following a line of reasoning and draw- 
ing logical conclusions from general propositions rather than 
administering absolute justice, that indeed is found alone in 
divine judgments, in each particular case, holds that a man 
cannot at the same time claim a right and do acts inconsistent 
therewith. Asa purely theoretical proposition this is of course 
unassailable. The cases therefore hold, in applying this prin- 
ciple, that a workman cannot insist that his master fulfil his 
duty of using reasonable care in keeping the plant, tools and 
implements free from defects, and at the same time work with 
these appliances that he knows to be dangerous. Consequently 
if the servant knows the defects and the risk consequent 
therefrom, he must be held to have determined to take his 
chances of injury if he continues to use them. A reasonable 
_and prudent man, such is the direction of the judicial! reasoning, 
would refuse to use an implement that he knows is likely to 
cause him injury. If he does use it, and is injured, it is his 


* Strahlendorf vs. Rosenthal, 30 Wis., 674. 
+ Patterson vs. R. R. Co., 76 Penn. St. 389. 


Hwy Wl 


own imprudence and negligence, and not the fault of the 
master that has caused his suffering. It seems, however, as if 
a waiver should not too readily be presumed in such cases, 
owing to the relative position of the parties. The application 
of the rule undoubtedly works hardship in many instances. 

A workman engaged in a manufacturing or other dangerous 
enterprise, discovering a serious defect in the appliances or 
management of the work, either has to throw up his situation 
or lose his right of action in case of his injury from such 
defect, if the master refuse or neglect to repair it. Placed in 
this dilemma he is virtually forced to take the risk of injury 
without reparation rather than trust to the uncertainties of 
seeking other employment, for which perhaps he lacks skill 
and capacity. 

It is hard to see, if there exists any valid reason for hold- 
ing the master to a duty ‘“‘to use reasonable precaution for the 
safety of those in his employment by providing them with 
suitable machinery and keeping it in a condition not to endanger 
the safety of the employed,” as held in Buzzel vs. Laconia Mfg. 
Co., supra, why that reason is in any way invalidated by the 
fact that the employee knows of an existing defect. Does this 
rule not virtually give the power into the hands of the em- 
ployers to nullify their duty in this respect by refusing to 
repair, and by their saying to their workmen, “here are the 
appliances, use them or leave my employment.” 

Baron Bramwell admitted the legal sufficiency of the plea 
of waiver, but he could not help passing a scathing estimate 
of it as a moral rule, when he said, ‘It may be inhuman so to 
carry on his works as to expose his workmen to constant peril 
and risk of their lives, but it does not create a cause of action 
for an injury which it may occasion, when the workman knew 
all the facts, and is as well acquainted as the master with the 
nature of the machinery and voluntarily uses it.” It may 
wellbe asked il it be expedient and necessary to continue to fol- 
low arule of law that on the authority of one of its ablest admin- 
istrators is confessedly “inhuman.” But the doctrine of 
waiver runs through the whole fabric of the law and is not at 
all peculiar to questions between master and servant. Itis 


ut Ya 


logical and consistent, and, asa pure metaphysical proposition, 
unassailable. That it fails to work justice in the present case 
is but an illustration of how the changing relations of capital 
to labor, and of employer to the employed have outgrown rules ~ 
of law made for the guidance of a far more primitive stage of 
economic development than exists to-day. Abolish the rule we 
cannot. The only remedy is to be sought for in statutory 
regulation of dangerous industries. 

But to return to a further consideration of the cases. If 
the master delegate to another the task of discharging a duty 
to the servant, that is personal to the master, or that rests as 
an absolute obligation upon him, the negligence or fault of the 
other is the negligence or fault of the master.* ‘When the 
middle man or superior servant employs and discharges the 
subalterns, and the principal withdraws from the management 
of the business ; or the business is of such a nature that it is 
necessarily committed to agents, as in the case of corporations, 
the principal is liable for the neglects and omissions of duty 
of the one charged with the selection of the other servants, 
and in the general conduct of the business committed to his 
care. But when the principal is an individual acting sui juris, 
and there is no evidence of a surrender of power and control 
to any subordinate, and he is present superintending the 
establishment in person, no such presumption arises or re- 
sponsibility attaches in respect of the acts of a competent 
and proper foreman, selected by him and in the employ- 
ment of the principal.” t 

Byles, J., in Clarke vs. Holmes, asks, “ Why may not the 
master be guilty of negligence by his manager or agent, whose 
employment may be so distinct from that of the injured ser- 
vant, that they cannot with propriety be regarded as fellow 
servants? And if a master’s personal knowledge of defects 
in his machinery be necessary to his liability, the more the 
master neglects his business and abandons it to others, the 
less will he be liable.” But it is only where the duty of the 


* Buckner vs. R. R. Co., 2 Lansing, 506, 78 Penn. St., 26. 17 Wall. (U. S.) 
521, &e. 
¢ Allen, J., in Malone vs. Hathaway, 


—_9R) 


master is absolute, or where it may be considered that he has 
contracted to discharge the duty in person, or where the 
manager or agent occupies such a position that notice to him 
or knowledge by him is equivalent to notice or knowledge by 
the master, that the latter is chargeable with the laches or 
wrongful act of the manager or agent. * 

In Brabbits vs. R. R. Co. + plaintiff was injured in the hand 
while engaged in coupling cars, by reason of a leaky throttle 
valve in the engine.- It appeared on the trial, that the com- 
pany had a foreman whose duty it was to examine and repair 
the engines, and that the engineer had previously reported the 
defective state of the engine to said foreman. It was argued 
against recovery, that the plaintiff could not recover as the 
injury was caused by the negligence of a fellow servant. But 
it was held that, it being the duty of the foreman to repair, 
and he being the person to whom reports should be made of 
want of repair notice to him, was notice to the company, and 
his neglect to repair was the negligence of the company. 

A master is as much bound to furnish sufficient help and 
workmen to perform the service safely, as he is to furnish 
suitable appliances and instrumentalities;{ and when the 
proximate cause of the injury is such insufficiency in the num- 
ber of workmen to safely perform the work, the master is 
liable unless he can fairly show that the injured servant 
assumed the risk. | 

Where a statute imposes duties upon a master, a neglect 
to comply with the provisions of it is negligence per se and 
for injuries arising from such negligence he is liable unless, 
again, he can show assumption of the risk by the servant. 
This is one of the reasons for favoring the imposition of 
special statutory duties and provisions regulating dangerous 
industries. 

The master’s duty extends to the procurement and keeping 
in repair of all the appliances necessary to the safe perfor- 
mance of the servant's duty, and any failure in these respects 





* See Ford vs. Fitchburg R. R. Co., 110 Mass., 240. 
+ 37 Wis., 290. 
t Flike us. R. R. Co., 53 N. Y., 549. 


egy a 


is a breach of duty that will render him liable if the injury 
occurred through the lack of, or defects in, such appliances. 
Thus in R. R. Co. vs. Taylor,* where plaintiffs intestate, a 
brakeman in defendant’s employ, was signalled “upon a very 
dark night” to make a flying switch, and, owing to the insuffi- 
ciency of the brakes upon the cars, and an insufficiency of light, 
the brakeman was run over and killed, it was held that the 
company was responsible for the injury. 

If a master is engaged in a complex business that requires 
definite regulations for the safety and protection of his em- 
ployees, a failure to adopt proper rules, as well as laxity in 
their enforcement, is negligence per se, and the establishment 
of defective or improper rules is such negligence as renders the 
master responsible for allinjuries resulting therefrom.t When 
the servant has notice or knowledge of a dangerous custom or 
practice adopted by his employer in the prosecution of his 
business, by entering into or remaining in the service, he 
assumes all risksincident thereto.{ And the same is true when 
he knows that no suitable rules or regulations have been 
adopted for the management of the business.$ 

In fine it is clear by a consideration of the decided cases 
that the master is only liable for his negligence, and he may 
relieve himself from liability by stipulating in the contract of 
hiring that he shall not be chargeable for injuries resulting from 
defects of machinery or plant; or by giving the servant ex- 
press notice of the risks incident to the service and withhold- 
ing any assurance that the risks will be lessened.7 But in the 
latter case, if the defects or risks are increased without the 
knowledge of the servant, the master will be chargeable for in- 
jury resulting from such increase of risk or defect. Grounds 
of public policy, it would seem, forbid a master from stipulat- 


* 69 Ill., 461. 

t 69 Ill., 461. 

{32 Iowa, 357. 

§ Hoskins vs. R. R. Co., Barb., 261. 

|| R. R. Co. vs. Bishop, 50 Ga., 465. 

4] Buzzel vs. Laconia M’f’g Co., 48 Me., 113 ; 38 Penn. St., 154 ; 50 Ohio St., 
541 ; 28 How Pr., 472. 


pf M 


ing in the contract of hiring that he shall not be liable for his 
own culpable negligence. 

Such then is the state of the common law respecting mas- 
ter’s liability for injuries caused by defects in the plant, ways 
and means used in his business. Taking a retrospective view 
of the law, as presented in the foregoing pages, it will be seen 
that the duties imposed upon the master for the safety and 
protection of his servant are quite extensive. But compara- 
tively little fault can be justly found with the logic and judicial 
reasoning upon Which these cases rest. Some of the except- 
ional cases we have endeavored to present above. In fact, 
much has not been said against the practical working of these 
rules; the great object of criticism being the doctrine of co- 
service, yet to be discussed. It is only after the master has 
used all the care of an ordinary, prudent and thoughtful man 
to provide safe and suitable plant, ways, means and machinery, 
and to inspect and keep the same in a safe condition, and in 
general words, to use all reasonable care for the health and 
well-being of those in his employ; that the workman is con- 
sidered to assume the remaining risks of the employment. 

Every sensible man knows, or ought to know, that there are 
risks and chances of injury against which the utmost care and 
forethought will not avail. Such risks are common to all 
men in all walks of life, and every man must bear them for him- 
self. Limited to this extent, as I think the cases limit it, the 
rule that a workman entering upon an employment tacitly con- 
tracts to assume all the ordinary risks of the business, is much 
more unjust and harsh in sound than in meaning. The term 
is perhaps unhappy ; the chances that he assumes might bet- 
ter be called the extraordinary than the ordinary risks. 

The master does not insure the safety of the workmen, and 
why, indeed, should he? Is it not a more reasonable and just 
rule that he should be liable only for his own breaches of duty 
and negligence, as is the case in other branches of the law? 
It is true that common carriers are held to be insurers of the 
safety of passengers and goods entrusted to their care, but such 
liability is exceptional, there being only two other instances in 
the law in which such an extraordinary lability is imposed, 


met A son 


and these are founded upon an old conception of public policy 
that is to-day, to say the least, questionable. 

As a corollary to the proposition that a master is liable only 
for his derelictions, the workman, in order to recover, must 
show absence of contributory negligence on his own part. This 
necessity is not peculiar to the case of workmen, but applies to 
allactions for injury. The rule rests upon the supposition that 
the complaining party was injured by his own negligence, and 
not by that of the defendant, or at least that the parties were 
in equal fault. But no matter how slight the degree of negli- 
gence be, if it at all contributed to the injury, the plaintiff is 
debarred from recovery. This seems unjustly severe, and has, 
in fact, been recognized as being so in Illinois, where a rule 
known as the doctrine of ‘comparative negligence ” allows 
recovery in a case where the plaintiff has been guilty of but 
slight negligence, but the defendant of gross. Unless such a 
rule prevails, no matter how gross and culpable the negligence 
of the master, if he can but prove that the injured plaintiff was 
guilty of some petty imprudence that assisted in some slight 
degree in his injury, he will escape all liability. 

The criticisms given in treating of this branch of the law 
show how extremely difficult the question as to the proper 
change in itis. The only practical method of alleviating the 
hardships caused by the rigidity of the rules, without violating 
doctrines, in their abstract and general aspect perfectly just 
and logical, seems to be that of special legislation, regulating 
such industries as are proved to require it. No violence will 
thus be done to logic or the symmetry of the judicial system, 
and at the same time the remedy, if the laws are properly 
enforced, will be more complete than by any other method. 


CHAPTER II. 
(b) Tur Doctrine oF Co-SERVICE. 


We have now come to the discussion of that part of our 
subject that has been most bitterly attacked, and for which it 
is most difficult to find a rational justification. There is a 
well recognized principle in the Common law, known as the 
doctrine of “‘ Respondeat Superior” that renders a man respon- 
sible to a person injured by the act of his duly authorized 
agent, acting within the scope of his authority. This rule 
seems to have been recognized as of universal application 
until the year 1837. 

In that year the case of Priestly vs. Fowler,* the report of 
which is meagre and unsatisfactory, announced, for the first 
time in England, the doctrine that a workman injured through 
the fault of a co-servant could not recover from the master. 
This decision was followed thirteen years later,+ and finally 
established by the action of the House of Lords, sitting as the 
highest Appellate Court in the United Kingdom.t 

The American law, although agreeing with the English, 
had a distinct origin. The first case to establish the rule on 
this side of the water was Murray vs R, R. Co.,§ decided in 
the year 1841. The leading American case, however, is Far- 
well vs. R. R. Co.|| It will thus be seen that the rule is a 
comparatively new one, and has not in its favor, whatever else 
it may claim, the argument of immemorial precedent. These 
cases have been recognized and followed until now it is the 
settled rule that a master is not liable to one servant for an 
injury caused by another servant engaged in the same common 
employment, unless he can be charged with some degree of 
fault or negligence in the employment or retention in his 


*.3M. & W., 1. 

+ Hutchinson vs R. R. Co., 5 Ex., 343. 

t By the reversals inthe appeals of the Scotch Cases of Coal Co. vs Reid, and 
Coal Co. vs. McGuire, 3 McQueen, 266 & 300. 

§ 1 MeM, 385. 

|| 4Metc., 49. 


plats 4 'p dete 


service of the servant causing the harm.* This doctrine, of 
course, rests upon the argument, before considered, that the 
workman is a free agent and not obliged to enter the employ- 
ment, that he must be considered as being compensated for . 
all risks in the wages he receives and contracting to assume 
all the ordinary risks of the employment, among which is that 
of injury by the negligence of his fellow servants. We have 
criticised these arguments in former pages, and will therefore 
proceed to enquire more particularly into the rule as evolved 
from the decisions. 

The master is bound, as we have seen, to supply a suitable 
number of workmen in order to prosecute the work with 
impunity; to use reasonable care in selecting and retaining 
such workmen; and to give them good, suitable and safe 
means and appliances with which to perform the services for 
which they are employed. But when he has so done, his duty 
is at an end, and he is not then liable to one of them for an 
injury received by reason of the carelessness of a fellow 
workman, engaged in the same service.t 

But the master is, however, bound to continue to exercise 
a reasonable oversight to ascertain the fitness of servants 
while they are engaged in his service, and to discharge those 
who, from any cause, prove inefficient or incompetent, as soon 
as knowledge of such fact comes to him, or through the 
exercise of due diligence, might have so come to him.{ Lack 
of the care required in the selection and retention of servants 
is actual negligence on the part of the master, a breach of his 
duty toward his servants, for which they can recover if injured 
by it. 

But the master does not guarantee the competency of his 
workmen any more than he does the safety and adequacy of 
the plant. The measure of his duty is to exercise the care 
and precaution of a reasonable and cautious man, in selecting 
and retaining his servants. This degree of care, however, is 


* R. R. Co. vs. Lansing, 49 N. Y., 521; Tentam vs. England L. R ,2 Q. B., 
33, and many other cases. 

+ R. R. Co. vs. Jewell, 46 Ill., 99; Mosely vs. Chamberlain, 18 Wis., 700. 

{ Lanning vs. R. R. Co., 49 N. Y., 521. 


__ 39 


not a fixed quantity, but varies with the nature and degree of 
the danger attendant upon the employment. Thus a higher 
degree of caution could be demanded in the selection of an 
engineer to run a locomotive than in the engagement of a 
brakeman, or in the engagement of a switchman than in that 
of a common track hand. In “Sherman and Redfield on 
Negligence,” section 90, it is stated that “Proof of the em- 
ployment of one who had always been a clerk, or common 
laborer, to run a steam engine, would raise a presumption of 
negligence on the part of the master, withoutshowing that he had 
actual notice of the servant’s antecedents.” A master is bound 
to investigate the antecedents of an applicant for such a 
position, at least to such an extent as to satisfy himself of the 
servant's competency. The servant, in order to recover, must 
prove lack of care, since the law, as in every case where a 
duty is imposed upon a man, presumes, prima facie, that the 
master has done his duty. 

Where a servant is generally known to be incompetent, the 
master is chargeable with negligence in retaining such a 
notorious workman in his employment, and this too, even if 
he did not know in fact of such reputation. The law presumes 
that a character so generally known to be bad, must be known 
to the master as well as to the rest of the community, or at 
least could have been ascertained by slight diligence. In 
Davis vs RK. R. Co.,* Cooley, J., says: ‘If the defendants con- 
tinue a man in their employ who is so notoriously unfit as to 
have established a general reputation to that effect, it is 
unreasonable, the plaintiff argues, to suppose the officers of 
the defendant ignorant of that fact, unless we excuse their 
want of information on the ground of neglect of duty, on their 
part, to their employees and the public, so gross as to make it 
proper and just to hold them responsible to the same extent 
as if they were fully informed of all the facts.” 


* 20 Mich., 105. 
7 See also Gilman vs. R. R. Co., 10 Allen, 233. But it is seen from the 


opinion just cited that such bad reputation must be so general as to be easily 
ascertainable upon inquiry. 


Ok 


If the ordinary duties of the service are of such a nature 
that they necessarily expose common servants to the risk of in- 
jury through negligence of each other, they cannot recover 
for injuries caused thereby, since the servant is presumed to 
have assumed these risks. Where also a servant is injured 
through the incompetency of a fellow workman, and he either 
knows or has equal means with the master of knowing of such 
incompetency, he cannot recover, for by not notifying the mas- 
ter he may be deemed either to have been guilty of negligence 
himself which caused his injury, or to have waived his protec- 
tion and assumed the risk.* 

The fact that the servants are engaged in separate and dis- 
tinct branches of service does not render the master liable; 
all who are engaged in the same common service, from the 
highest to the lowest, and who are subject to the same general 
control, are fellow servants within the rule. ‘“ When,” says 
Justice Story,t ‘‘the object to be accomplished is one and the 
same, when the employees are the same, and the several per- 
sons employed derive their authority and compensation from 
the same source, it would be extremely difficult to distinguish 
what constitutes one department, and what a distinct depart- 
ment of duty. It would vary with the circumstances of every 
case. If it were made to depend upon the nearness or distance 
of the persons from each other, the question would immedi- 
ately arise, how near or how distant must they be in the same 
or different departments? In a blacksmith shop, persons 
working in the same building, at different fires, may be quite 
independent of each other, though only a few feet distant. In 
a rope walk, several may be at work on the same piece of cord- 
age, at the same time, at many hundred feet distant from each 
other, and beyond the reach of sight and voice, and yet acting 
together.” But it seems at least probable that some better 
criterion can be found than mere distance. In some of the 
states it is held that workmen are not to be treated as fellow 
servants unless they are subject to the same immediate control. 
This appears to be a more sensible rule. 


* Haskin vs. R. R. Co., 65 Barb., 129. 
+ In Farwell vs. R. R. Co., 4 Mete., 49, 


SY Pil 


The reasons advanced by Justice Story in the above quoted 
opinion may, doubtless, be a convenient excuse for holding to 
the doctrine of co-service, but it is not a very weighty argu- 
ment for refusing to consider a question in which justice is 
involved, on the simple ground that it presents difficulties. 
Perplexing questions are continually arising in every branch of 
science and in every department of human affairs, with the in- 
creasing complexity of society. On the answers society gives 
to these questions depends, in a great measure, the complexion, 
if not the very existence of our social economy and _ political 
organism. On what truly remarkable reasons are some of the 
legal precedents founded, that we are obliged blindly to follow 
for ages. Is it to be tolerated that the fat indolence that re- 
fuses to be troubled by perplexities is to be the rule of our 
tribunals? Should not such questions, as Mr. Justice Story 
experienced so much difficulty in solving, be left to the deter- 
mination of twelve impartial and more energetic men, as are 
other troublesome questions of fact? 

Where two servants of a common master are employed 
upon the same work, and one of them, without authority from 
his employer, directs the other to use a machine for a danger- 
ous and improper purpose, for which it was not intended or 
provided, and he complies and thereby receives an injury, the 
employer will not be held liable, for the servant is acting with- 
out the master’s orders or sanction.* Butif such person had 
authority from the master to direct his fellow workman, the 
rule is otherwise.t 

When the injury arises from the negligence of a co-servant 
no recovery can be had, even though it results from the use by 
them of machinery that, unless used in a particular manner, is 
unsafe; or even although appliances might be provided that 
would render the machine safe without such careful use by the 
servant. This rule rests, of course, upon the ground that the 
negligence, and not the dangerous nature and defective condi- 
tion of the machine, is the proximate cause of the injury. But 
would it not be better to endeavor to determine the actual fact 


* 60 Ill., 171; 6 Heisk, 347. 
t 28 Ind., 28; 110 Mass., 240; 3 F. & F., 322. 


5 


rather than adopt an absolute and irrebuttable presumption to 
that effect? 

Where machinery is defective, so that if the element of the 
co-servant’s negligence were absent, a recovery might be had; 
yet if the proximate cause of the injury is the negligence of a 
fellow servant, no recovery can be had—as where a switchman 
leaves his switch unfastened or turned in the wrong direction ;* 
or where a brakeman fails to discharge his duty properly ;+ or 
where any employee of a railroad fails to discharge his duty, 
whereby another in the same employment is injured, as a 
workman in a machine shop,{ a laborer on the track,$ a cayr- 
penter employed to repair its road or bridges,| or a car repairer 
employed to mend the cars.{ This rule, however, does not 
apply when the moving cause of the injury was not the co- 
servant's negligence, but rather the defective condition of the 
machinery in his management, nor where proper care has not 
been taken in the selection of proper and suitable materials.** 

Where the master personally interferes in the work, and 
through his participation therein, either as a direct result or 
as a consequence thereof, an injury results to a servant, he is 
responsible.t+ In Roberts vs. Smith, where the master himself 
superintended the manufacture and repair of machinery, it was 
held that the fact that the work was done under the direction 
of his foreman would not relieve him from lability. So, too, 
when the master himself is personally engaged in the prosecu- 
tion of the work in the capacity of a fellow servant, or where 
he personally takes upon himself the conduct or oversight of 
the business, or any department thereof, and through his per- 
sonal neglect an injury results to a servant in his employ, the 
rule as to co-service does not apply, and he is answerable for 
the injury as he would be to astranger. ‘The servant has a 





* R. R. Co. vs. Thomas, 51 Miss., 637. 
+ Hayes vs. R. R. Co., 3 Cush., 270. 

ft King vs. R. R. Co. 

§ 10 Cush., 228. 

|| 14 Gray, 466. 

110 Allen, 235. 

** 55 Ill., 492. 

tt 2H. & N., 213. 


EN, and, 


right to rely upon the supposition that the master, in all mat- 
ters pertaining to the business, will exercise reasonable care. 
Negligence on the master’s part may consist in his personal 
interference in the work, the negligent employment of incom- 
petent servants or in the selection of them, or in the selection of 
defective machinery, material or premises, but in all cases in. 
order to hold him in damages the servant must show personal 
fault on his part that in some respect caused the accident. 

It becomes an important question, in view of the rule rela- 
tive to co-service, to determine who are fellow servants. The 
true test is said to be subjection to control and direction by 
the same general master in the same general object. Thus in 
a New York case,* the plaintiff, while employed upon a barge 
that was engaged in lightering a steamship, was injured through 
the negligence of one employed upon the steamship in dis- 
charging her cargo. In an action to recover for the injury, 
the defendant’s answer admitted that at the time of the acci- 
dent the defendant owned and had the control of the steamer ; 
and that the barge was not owned by them, and that the plain- 
tiff was employed by the master of the barge. It was held that 
under these circumstances the servants of the defendant and 
the plaintiff were not co-servants, Karl, Commissioner of Ap- 
peals, saying: ‘They are not the servants of a common prin- 
cipal in any sense, and they are not strictly engaged in the 
same employment. The duties of the one are confined to the 
steamship, and of the other to the lighter. Hence this case 
does not fall within the rule that an employer is not responsi- 
ble for an injury occasioned to an employee by another en- 
gaged in the same general service or undertaking.” And again 
in O’Donnell vs. R. BR. Co.,t the plaintiff was a journeyman 
carpenter in the employ of the defendant under a master car- 
penter. The company was repairing one of its bridges, about 
fifteen miles from the place where the plaintiff and the other 
hands lived. They went to their work by the defendant’s 
morning train, and returned on the evening train. On one 
occasion while returning from work on the train, a rail broke 


* Soenson vs.8S. 8S. Co., 57 N. Y., 108. 
t 59 Penn. St., 239. - 


Seine ye 


and plaintiff was seriously injured. In an action to recover for 
the injuries, it was held that the plaintiff could not be consid- 
ered as a co-servant with the hands running the train, so as to 
defeat a recovery by him. That a railroad company is bound 
to furnish a safe and reliable road-bed for its servants as well 
as for the rest of the public, and that a failure to do so was 
not one of the ordinary perils incident to the service. 

It is clear from the cases, of which there are very many, 
that the test of co-service is subjection to the same general 
control, coupled with an engagement in the same common 
pursuit. ‘‘Thus, if A and B each have separate and distinct 
contracts for building separate portions of a railroad track, 
the servants of both are engaged in the same common pursuit, 
and are laboring to accomplish the same end, but they are 
not co-servants, because they are not subject to the same con- 
trol. So,if Ais the proprietor of a cotton mill, and also of 
an iron foundry, the employees in both are subject to the 
same general control, but they are not co-servants, because 
they are not engaged in the same common service. There 
must be not only a unity in respect of control, but also in re- 
spect of the object and ends of the service, in order to create 
that co-service which renders the servants of the same master 
co-servants within the rule. The fact that they are paid by or 
are in the employ of the same person is not decisive ; they 
must also be engaged in the same common pursuit. The 
reason for this rule is evident. The servant when he enters 
into the employ of the master can only be said to take upon 
himself the risks incident to the service in which he engages. 
He is presumed to have those risks in view, and to contract in 
reference thereto, but this cannot be extended to embrace or 
cover perils not incident to the particular service, in all its 
details and incidents.” Superiority or inferiority in rank or 
position among co-servants does not alter the rule,* unless the 
superior servant is charged with the duties of the master to 
the servant, in such a manner that it can be said that the su- 
perior servant occupied the position of the master in respect 


* Sherman vs. R. R. Co., 17 N. Y., 153. 


phd 


to the servant, in reference to the duty from a breach of which | 
the injury complained of has resulted. 

If there is a natural or necessary connection between the 
different branches of the employment, such as necessarily 
brings the servants into contact with each other in the course 
of their employment, they are co-servants within tlie meaning 
of the rule, however dissimilar their respective employments 
may be. Thus it has been held that on a railroad a brake- 
man, engineer, conductor, switchman, trackman, carpenter, 
superintendent, telegraph operator, station agent, and, in fact 
all persons in the employ of the company, subject to its direc- 
tion and control, and engaged in any department in the oper- 
ation of the road, are engaged in prosecuting a common end, 
and are therefore fellow servants within the meaning of the 
rule. 

The rules as to co-service, given above, stated as bare prop- 
ositions, a part from their application, will, I think, be deemed 
to be just by most candid minds. It would be eminently un- 
reasonable, as well as unjust, to make an employer lable for 
the negligence of another whose acts he cannot always control. 
To render the employer lable for the carelessness and negli- 
gence of his workman, when he has exercised all the care of 
a reasonable and prudent man in ascertaining his capacity and 
fitness for the work in which he is employed, and continues to 
inquire as to these matters, is to hold him responsible for the 
results of the deficiencies in his workman’s character, educa- 
tion and training; matters over which the employer had not 
in fact, nor could have had any control. 

It is supposed that two men working at the same bench, or 
at the same forge, are as well acquainted with each others — 
characters and dispositions as the master is, and can as effect- 
ually guard against each others negligence. It is reasonable 
to suppose that a workman in such a case assumes the risk of 
injury from his fellow. } 

But the definition of the term “fellow servants,” and the 
wide extension of the doctrine of co-service given by the 
Courts, have been the fruitful sources of hardship and in- 
justice. At the time when this branch of the law was worked 


—$9— 


out by the judges, the state of society was different than it is 
at the present day. Industries were carried on upon a smaller 
scale, and the use of machinery was not so prevalent as it now 
is. But fifty years have seen great changes. Probably his- 
tory has not witnessed greater in the same period. The growth 
of the present commercial-industrial system has completely 
revolutionized the methods of manufacturing and trade. Thou- 
sands of work people, who know little or nothing about each 
others characters and antecedents, are now thrown together 
in the prosecution of acommon end. Formerly each workman 
engaged in a small shop or factory, for they were never large 
according to modern ideas, knew every other fellow laborer, 
was acquainted with his character, disposition and antecedents. 
They had probably grown up together in the same village. 
He could be fairly presumed to know whatever dangers were 
likely to arise to him from his fellow, to guard against the 
same, and to assume the risk. Then systems were simple, 
now they are complex. In those days there were few corpora- 
tions conducting a business minutely divided into separate de- 
partments, in which the workmen pursue separate trades, but 
are working for the same common end, the production of a 
complicated product, under the same general control, and for 
the same employer. 

When actions begun to be brought into the courts for acci- 
dents incurred in such complicated employments, the judges 
naturally looked into the books for precedents, and they found 
there the rules evolved under the old economic conditions, and 
applied them to the new cases, not taking into consideration 
the change in the economic structure of society. Thus as has 
sometimes happened before, a strict adherance to decided 
cases or precedents has not proved to be the method most con- 
ducive to justice. 

To try to apply the rules that satisfactorily regulated the 
relations of employees in a little shop fifty years ago, where 
all the products were the result of hand labor, and all the 
operatives were known to each other, to the case of a great 
modern enterprise like a railroad, for instance, is about as 
wise as to attempt to treat the ailments of a full grown man 
with the pathology suitable to an infant. 


Ad pet 


Engineers, brakemen, conductors, telegraph operators, 
switch-tenders, signal men, and many more who might be men- 
tioned, are employed in distinct branches of a complex under- 
taking. They occupy positions frequently separated by many 
miles of space ; they can know but little of each others habits, 
they are practically strangers. To place them in the same 
category and govern them by the same rules as two smiths at 
a forge,is palpably absurd; yet such has been the case. Such 
an extension of the doctrine is unwarrantable, and it seems as 
if some better criterion of co-service might be found than 
that recognized by the courts, namely, a common general con- 
trol in an endeavor to obtain a common ultimate result. It is 
believed, however, that there is a disposition to relax the 
stringency of this rule, somewhat, at present. Indeed, in 
some states, as we shall see later, statutes have been passed 
abolishing the doctrine of co-service in respect to railroads. 

In further pursuing our inquiry, we find that the same rule 
applies when the master gives entire control over his business, 
or over any department of it, to another, exercising himself no 
control or supervision over the same. When such control is 
delegated to a general superintendent or overseer, such per- 
son stands in the place of the master to the servants. He 
ceases to be a fellow servant and becomes the representative 
of the master’s authority, and the master, is, therefore, ac- 
countable for his negligence or wrongful act in the same degree 
as if committed by himself in his personal capacity.* The 
test by which to determine whether the superintendent is the 
representative of the master, is to ascertain whether in his 
department his will and judgment are supreme Where such 
superintendent has the authority to engage and dismiss ser- 
vants who act under his control, the master ig liable for his 
lack of ordinary care in so dismissing, employing and con- 
trolling. 

In a New York case,t the Supreme Court in passing upon 
the master’s liability to his servants for injuries resulting to 


* Lansing vs. R. R. Co., 49 N. Y., 521. 
¥ Wright vs. R. R, Co., 28 Barb., 80. 


etd lhe 


them from the acts of a person having power delegated by the 
master to employ, discharge and control servants in the mas- 
ter’s employ, said: ‘‘The power to employ servants may be 
delegated by the principal, and this must generally be so when 
the principal is a corporation. When the principal so acts by 
an agent, he will, upon general principles, be liable for the 
negligence of the agent. This agent will not be regarded 
simply as a fellow servant of those whom he employs in the 
general business.” This doctrine has since been sustained by 
many New York cases. 

In a case from the Ohio Courts, * it was held that con- 
ductors and brakemen are not co-servants, since the latter are 
under the control of the former who are the representatives 
of the master. The facts in the case of O'Donnell vs. R. R. 
Co. were as follows: The plaintiff, a carpenter in the employ 
of a contractor doing work for the defendants, was injured 
while riding in one of the defendant’s baggage cars, contrary 
to the rules of the corporation. Upon the trial it appeared 
that the plaintiff was so riding, although contrarv to the rules, 
with the permission of the conductor. Upon these facts the 
Court held that the permission of the conductor must be con- 
sidered permission of the company. (Qucre, however, if this 
doctrine would be generally followed ? 

In a Wisconsin case already cited,t plaintiff was injured 
severely in the hand while engaged in coupling cars. It 
appeared that the throttle valve of the engine was defective, 
thus rendering the locomotive unmanageable. It also appeared 
that the company had appointed a foreman to repair the 
engines of the company, and that it was the duty of the 
engineers to report to him all defects in their engines. The 
driver of the engine that injured the plaintiff had duly reported 
the leaky condition of the throttle valve to the foreman, but 
the latter had neglected to repair it. It was set up asa 
defence that no recovery could be had, as the injury had been — 
caused by the negligence of a co-servant. The Court, how- 


*R. R. Co. vs. Keary, 30 Ohio St., 201. 
+ Brabbits vs. R. R. Co., 38 Wis, 290. 


ay id 


ever, held otherwise, ruling that as it was the duty of the 
foreman to repair, and he being the proper person to whom to 
report any defect in the engines, he being appointed and 
authorized to that purpose, and the company relinquishing all 
control in such matters to him, he thus became the represen- 
tative of the corporation for. that particular pupose, and that 
therefore, notice to him of a matter within his department, 
was notice to the company, and that his neglect to repair was 
negligence on the part of the company, for which the plaintiff 
could recover. 

Also, in a Tennessee case,* it was held the knowledge of 
the engineer of defects in the locomotive he was operating 
was the knowledge of the company, it being his duty to re- 
port defects therein, and that his neglect to do so was the 
negligence of the company. McKinney, J., in that case 
remarked, ‘The established rule that notice to an agent in the 
transaction for which he is employed, and within the scope 
of the authority confided him, is notice to the principal, ap- 
plies equally to a corporation as to a natural person.” “In 
~ general the only mode in which a corporation aggregate can 
act, is through the intervention of agents, either specially 
designated by the act of incorporation, or appointed and 
authorized by the corporation in pursuance of it, and the cor- 
poration is responsible for the acts of the agent; and of 
necessity, the knowledge of a fact by the agent, directly con- 
nected with the duties of the business confided to his care, 
must be chargeable to the corporation.” + 

The tendency of the course of the decisions is to give the 
agents of a railway company a liberal discretion, and to hold 
the company liable for their acts, within the most extensive 
range of their charter powers. ‘‘And it has been suggested, 
with much plausibility, that in respect to corporations, the 
legal entity should be regarded as always present, in the per- 
son of any of the employees, within the range of the employ- 
ment.” } 


* R. R. Co. vs. Elliott, 1 Cold., 612. 
t Redfield on Railroads, 380. 
t Redfield on Railroads, 380. 


a4 


It is very gratifying to note this change in the tendency of 
judicial reasoning. Some of the early cases went to an ex- 
treme and senseless extent in declaring practically every one 
in the employ and pay of a master, fellow servants, in total 
disregard to their functions or relative relations. Laborers 
and superintendents whose orders the former were obliged to 
obey, were indiscriminately classed together by the early 
decisions.* It is to be hoped that this tendency will not be 
confined to the case of railroads, but will be extended until it 
embraced all complex industries. 

That this hope is not entirely illusory a recent Pennsyl- 
vania case shows.t The plaintiff in this case was a stevedore 
employed by and working under one Corcoran as boss steve- 
dore, in unloading a vessel. He was injured by the fall of two 
tierces of rice, occasioned by the insufficiency of the rope by 
means of which the rice was being hoisted from the hold of 
the vessel. 

Upon the trial in the lower court, the plaintiff was non- 
suited on the theory that the plaintiff and Corcoran were 
co-servants, and that the negligence being Corcoran’s the 
defendants were not liable for the injury. Upon appeal, 
however, the Appellate Court set aside the non suit and 
entered a remittitur for a new trial, holding that it was for 
the jury to determine whether Corcoran had such delegated 
authority as made him the representative of the master. 
“The principle,’ said Woodward, J., “that the master is 
exempt from responsibility to the servant for injuries received 
from the ordinary dangers of his employment, the negligence 
of his fellow servants, is too deeply imbedded in our law to be 
disturbed. But where the master places the entire charge of 
his business, or of a distinct branch of it, in the hands of an 
agent, exercising no discretion and no oversight of his own, it 
is manifest that the negligence of the agent in exercising 
ordinary care in supplying and maintaining suitable instrumen- 
talities, is a breach of duty for which the master should be 


* Vide Gilshannon vs. R. R. Co., 10 Cush. 228; Brown vs. Maxwell, 6 Hill, 
592, and Sherman vs. R. R. Co., 17 N. Y., 153. 
+ Mullan ws. The Steamship Co., 78 Penn. St., 26. 


COI bal 


held liable. The negligence of the agent with such powers 
becomes the negligence of the master.” This case tends to 
hold that the mere fact that Corcoran was foreman of the gang 
of laborers, is prima facie evidence that he was the represen- 
tative of the master, and leaves it to the jury to find whether 
he was such representative or a fellow workman with the 
plaintiff. 

The master cannot be held for any act or negligence on the 
part of a superior servant, superintendent or overseer, except 
in so far as such act, or the performance of such duty, as said 
superior servant has neglected, was incumbent upon the master 
and the performance of it delegated by him to said superior . 
servant. As to all mattersin which the superior servant acts as 
co-servant with the other workmen, he stands in that relation to 
them, and for an injury inflicted by his negligence while in that 
capacity, no recovery can be had.* 

Where a superior servant abuses the authority vested in 
him by the master, the latter is clearly liable. Thus where a 
fireman is subject to the control and direction of the engineer, 
the employer is held liable for injuries resulting from the 
wrongful exercise of this control and direction, in the case of 
Harper vs. R. R. Co.t So also a conductor of a train having 
control over the brakeman and engineer, if he expose them 
to risks not within the scope of their ordinary duties, will 
render his master liable.{ And in another Ohio case,$ an 
engineer was held able to recover for an injury received in a 
collision occasioned by the conductor furnishing him with an 
old time-table no longer in use upon the road. 

It is thus evident that if the employer surrenders the entire 
control and management of his business, or of any particular 
department of it, to an agent or superintendent, such agent or 
superintendent is not considered a co-servant with the other 
employees of the master, but as his “alter ego” for the 
purposes for which he is appointed, and that the master is 


* Buckner vs. R. R. Co., 2 Lansing, 506. 
+ 47 Mo., 567. 

t R.R. Co., vs. Keary, 3 Ohio St., 201. 

§ R. R. Co., vs. Stevens, 20 Ohio St., 315. 








responsible for his acts done in the scope of his employment. 
But the fact that a servant has some authority and power of 
direction will not cause him to be considered an agent of the 
master; he remains a co-servant notwithstanding, and the 
master is not liable to his servants for his acts. 

The courts are not altogether agreed in determining, in any 
particular case, whether an employee is merely a superior 
servant with a limited power of control, or an ‘“‘alter ego” of 
the master. It is undoubtedly just that if a man delegates all 
his duties to an inferior, he should be held responsible for his 
acts ; else otherwise the more a man delegated his authority 
and neglected personally his duties, the more would he escape 
lability. But it seems as if the law does not carry this admir- 
able doctrine to its legitimate extent. A person to whom all 
the powers and duties of an employer have been delegated is 
the agent of the master. Why is not a person to whom some 
power of direction and control has been entrusted equally an 
agent to that extent? If the fellow laborer is injured by the 
fault of the former, he can recover, but not if by the fault of 
the latter. The one is regarded as the agent of the master, or 
as the law Latin phrase forcibly has it, the master’s other self, 
the other a mere co-servant. It seems extremely difficult to 
find any logical reason for the distinction. The one is a general 
agent, the other a special, but none the less an agent. In other 
departments of the law, a principal is Hable for the acts of a 
special agent acting within the scope of his authority, why 
should he not be here? ‘The distinction seems to be arbitrary 
and technical, and we can search the reports in vain for a 
logical reason for it. 

Some length hasbeen given to the discussion of this question 
of who are fellow servants within the meaning of the rule, for 
it is a very important one, and influences recovery in any par- 
ticular case, according as the relation can be successfully 
affirmed or denied. The last element necessary to the recovery 
of damages is equally as important, and applies to all actions 
for damages for injuries as well as to the particular case in 
which the injury is caused by co-servants. It is that, in 
order to recover, the plaintiff must show, in all cases, lack of 


aS 


negligence on his own part contributing to the injury. ‘“ Not 
that he was entirely careful, but that he was in the exercise of 
all the care that could reasonably be expected, in view of the 
circumstances.” 

In conclusion it may be stated that it has of late been 
argued in favor of the doctrine of co-service that although it 
may not, in all cases, be very logical, it is justified by “public 
policy ’”’—a very specious and high sounding phrase. In 1837; 
when the doctrine was first promulgated, the views as to what 
was for the public interest doubtless were that infant industries, 
in a country beginning to awaken to commercial and manufac- 
turing activity, should be protected and fostered. Protective 
tariffs were then commonly held to be necessary, and it was 
thought expedient to shield feeble enterprises from expensive 
litigations and heavy damages for accidents to laborers. But 
corporations and industries have since attained herculean 
proportions, and we are beginning to question whether they 
need longer such tender care and nursing. Indeed in these 
days where it seems to be pretty generally conceded that a 
sound public policy demands further assurances and protection 
to individual rights against the encroachments of monopolies 
and corporate power, this assertion is at least open to dispute. 
It would seem to be the chief policy of a civilized state to 
administer justice with as great impartiality as is possible 
under human limitations; and it has long been questioned 
whether this desideratum is attained under the present doctrine 
of co-service. 

I would not be interpreted as saying that in all cases of 
injury by a fellow workman, the injured servant should 
recover. In cases where the workmen are engaged in the 
same department of labor, it seems that the doctrine cannot, 
as a general rule, work material hardship; it is at least reason- 
able. Butitis the great, and as is believed unwarrantable, 
extension that the principle has attained in some jurisdictions, 
with which fault is found. A tendency is apparence, as we 
have seen, in some states to narrow this rule to its legitimate 
limits, and it can only be hoped that this tendency will become 
erystalized, or that the legislatures will interpose in the inter- 
est of justice. 


ai (al 


CHAPTER ITI. 
STATUTORY PROVISIONS. 


An attempt has been made in the foregoing pages to pre- 
sent the common or judge made law. But were we to be 
satisfied with the view thus obtained we should have an in- 
complete conception of the actual state of the law and the 
extent of the employer’s liability. Whatever may be the 
eriticism of the rules of the common law upon the subjects 
under view, they are, for the most part, too deeply rooted in 
our system and have been too long followed to be changed 
except by legislation. It is not at all surprising that the ac- 
tivity of the legislative bodies should be so often called into 
requisition in amending the old law and creating new. Many 
people entertain a fear of too much legislation, and it is un- 
doubtedly true that much that is done in parliamentary 
chambers might better be left undone. But when we consider, 
on the one hand, that we are living under a system of juris- 
prudence nearly, if not all, of the rules, principles and prece- 
dents of which were worked out and determined previously to 
the present century ; and, on the other hand, when we form a 
conception, if such a thing be possible, of the unparalleled 
erowth of wealth and commerce, the sudden birth and gigantic 
extension of the commercial-industrial system, the radical social 
changes, the undreamed of inventions, the daily increasing 
complexity of social life—in a word, the entire revolution of 
society, during that period of time—the wonder is how the 
ancient artificers of our legal structure could have builded so 
wisely and so well: how that structure could experience so 
many shocks and upheavals and yet escape with so little 
damage and need of repairs. 

The States and Territories of the United States have, with 
but few exceptions, enacted laws for the safety of workmen 
employed in dangerous occupations. The character of these 
provisions naturally depends upon the nature of industries 
chiefly carried on in the respective commonwealths. The 
manufacturing states have passed factory laws, the railroading 
states, provisions regulating railroads, for example, but in no 


awa ote 


state must we look for a systematic and perfect body of legis- 
lation for the protection of the working class as a whole. Most 
of the provisions, as we shall see, are well calculated for the 
prevention of casualties, although some are indifferent in their 
merits or not enacted directly for the purpose of protection to 
laborers but apply to the whole community, being an ex- 
ercise of the “police power’ of the state and belong more 
properly to public or administrative law than to private or civil; 
but they undoubtedly tend to secure the safety of workmen as 
well as the rest of the community and for that reason examples 
~ have been given here. Many states enforce the use of patent 
and safety appliances upon railroads, but they do not always 
necessitate the use of such appliances upon all the cars or 
tracks of the companies, freight trains and siding tracks 
being often excepted. All the coal mining states have 
complete and efficient enactments regulating the working of 
the mines within their jurisdictions. Most of the manufac- 
turing states have factory laws of greater or less excellence. 
Several of the states have abolished the doctrine of co-service. 
But there is yet much room for beneficial legislation. 

The date is but recent since the demands of labor first 
occupied the serious attention. of society at large, and all the 
statutory provisions can be found in the session laws of the 
past ten or fifteen years. Doubtless as the question is more 
and better considered, and as experience shows the necessity, 
the number and efficiency of the provisions will increase. 'The 
states have very generally established bureaus of labor statis- 
tics, inspectorships of factories, railroads, mines, and similar 
offices, to investigate the social and labor problems arising 
within their borders, and to advise the legislatures thereon and 
to report infringements of the laws relating to their depart- 
ments. It is doubtless true that many of these laws are more 
honored in the breach than in the observance of them, and it 
is hoped that by means of these bureaus to add to the effi- 
ciency of the labor laws already enacted and to provide for 
new ones as the necessity may appear. 

In exploring the statute books in search of legislation upon 
the topic of accidents to workmen and their prevention, our 


LE AQ Ye: 


aim shall be rather to show what has already been attempted 
and what can be attained in this field, than to endeavor to pre- 
sent systematically the present state of the statutory law of 
any of the particular states. 

One of the most important, and at the same time danger- 
ous, industries in our country is railroading. By far the 
greatest number of accident cases that are brought into court 
are caused in this occupation. We may confidently expect, 
therefore, to find abundant legislative regulation here. Nearly 
every state with railroad interests, has organized a board of 
railway commissioners to have general supervision of the 
management of the roads within its borders. The power of 
these boards in the various states are very similar. 

In New York, to take an example, the act in— 


CHAPTER 353, Laws 1882, 


Section 1. provides for creating the board; when appointments are to be 
made and how appointed, vacancies how filled, duties of clerk of board, duties 
of marshal, oath of office, principal office to be in Albany. 

§ 2. Meetings once a month. 

§ 3. Quorum, 

§ 4. Commissioners may administer oath and have general supervision of 
all railroads; accidents to be immediately reported to board; before investiga- 
tion by board, notice to be given; power of board to examine books, papers 
and witnesses; witness fee; board may sit in town where principal oflice of 
road is situated. 

§ 5. Board to take cognizance of any violation of the law and present 
facts to Attorney General. 

§ 6. May require repairs to be made, additions to rolling stock, changes in 
rates, &c., and upon refusal of road to comply present facts to Attorney 
General. 

§ 7. Railroad companies to afford necessary information; commissioners 
not to give publicity to information. 

§ 8. Personal examinations, advice, investigation, etc., not to impair legal 
rights. 

§ 9.—Annual Report of Commissioners. 

§ 10.— Commissioners to have power to prescribe form of report of railroad 
companies. 

§ 11.—Report of Commissioners to be printed. 

§ 12.—Salaries, &e. 

§ 13.—Limit of total annual expense. 

§ 14.—Commissioners may enter cars, offices, etc. ; commissioners not to 
recommend to railroads appointment ; acceptance of pass works forfeiture of 
office ; revelation of information to other companies a misdemeanor. 


wall 3 aa 


§ 15.—Repealing inconsistent laws. 
§ 16.—To take effect immediately. 


The powers of the Connecticut Bureau are similar. 


GENERAL StTaTuTEs (1875), Tir. 17 Cuap. 2 Pr. 9, PAGE 320. 


§ 10.—** No part of any railroad shall be open for public travel unless the 
railroad company shall first obtain a certificate signed by the railroad commis- 
sioners, that said road is ina suitable and safe condition.” 

§ 11.—‘‘ The railroad commissioners shall, at least twice in each year, ex- 
amine the several railroads in this state, and shall make a like examination of 
any railroad within the limits of any town, when thereto requested in writing by 
the selectmen, and shall see that the same are kept in suitable repair, and that 
the railroad companies faithfully comply with all provisions of law.” 

§ 12.—‘* Said commissioners shall cause such portions of the law relating to 
railroads as they deem proper, to be posted as they shall direct, and may at any 
time, and on the complaint in writing of five of the stockholders or creditors of 
any railroad company, assigning sufficient reason, shall examine its railroad and 
its appurtenances, engines and cars, and its by-laws and rules, and in such ex- 
amination shall pass over the road at a rate not exceeding six miles an hour, 
and shall stop at each culvert, bridge and piling, and examine the same, and 
shall examine the rails and ties in every mile ; notifying the company in writing 
of the time of such examinations, and shall notify the company to make all 
repairs required, within a time limited ; shall make such rules as to platforms 
and outbuildings as are of general interest * - it 

§ 14.—** The railroad commissioners shall recommend in writing to the sev- 
eral railroad companies, or any of them, from time to time, the adoption of such 
measures and regulations as such commissioners deem conducive to the public 
safety and interest, and shall report any neglect to adoptsuch recommendations 
to the next General Assembly.” 

§ 15.—Provides that the commissioners may issue an injunction restraining 
the operation of any road which they deem dangerous. 

§ 16.—The railroad commissioners may summon and examine, under oath, 
such witnesses as they may think proper inrelation to the affairs of any railroad 
company, and whosoever shall refuse, without justifiable cause, to appear and 
testify, or who shall in any way obstruct a railroad commissioner in the dis- 
charge of his duty, shall be fined not exceeding one thousand dollars, or imprison- 
ed not exceeding one year, or both. 

§ 17.—Provides that the commissioners shall make a report of the conduct 
and condition of every road to the General Assembly. 

§ 80.—‘‘ Upon every train run, or intended to be run upon any railroad in 
this state, at a greater average speed than thirty miles an hour, between sta- 
tions, and consisting of more than two passenger cars, one brakeman shall be 
kept at the brake of each car ; but when the double action brake is used on any 
such train, but one brakeman need be kept upon, and for every two cars con- 
nected with such train ; and the railroad commissioners may grant permission 
to any railroad company to reduce the number of brakemen required upon pas- 
senger trains, when such company may have adopted a system of brakes, to be 


panty Es 


operated by the engineer, which in the opinion of the commissioners may render 
such number of brakemen unnecessary, but said commissioners may revoke 
such permission when they consider the public safety requires ; and on said 
revocation such company shall place upon its trains the number of brakemen 
required by law.” 


These acts give a wide power of inspection and control to 
the commissioners, and when sufficiently enforced cannot fail 
to be of material benefit. But the manner in which legislation 
is most useful in preventing serious accidents on railroads, is 
in making the use of certain improved appliances, that the 
common law is unable to prescribe, obligatory, and in prescrib- 
ing the method of construction and conduct of the roads. 

For instance, in Vermont we find protective measures taken 
against brakemen being swept from the car tops by striking 
against too low bridges: 


Aot oF Nov. 26TH, 1872, as AMENDED By Act oF Dkc. 23, 1880. 


‘* All railroad bridges in this State shall, when built or rebuilt, be hereafter 
so constructed as to leave a clear space of not less than three feet between 
the inner sides of said bridges and the outer sides of all cars passing through 
the same, and also a clear space of not less than seven feet from the walking 
boards, or top covering of all cars except, hay, charcoal, bark, horse and refrig- 
erator cars and other cars for the transportation of special freights for which a 
higher class of car is required, and the lowest timber, boards or irons in the 
covering of said bridges.” 

§ 2. ‘* All railroad bridges now constructed on all railroads in this State 
shall be made to conform in height to the provisions of section one of this act, 
within eight years from the passage of this act, and after the first day of March, 
A. D. 1873, no railroad company in this State shall run cars of its own with lad- 
ders or steps for ascending to the top of the same on the sides of said cars, but 
said ladder or steps shall be on the ends or insides of said cars.” 

§ 3. Penalty for failure to comply with act. 

§ 4. Method of enforcing penalty. 


Similar provisions exist in other States. 

Statutes have also been passed in most of the States im- 
posing heavy penalties for the employment of intoxicated or 
unsuitable persons in responsible positions on railways. We 
may take the following as a specimen, from Vermont: 


REVISED Laws, 1880. 


§ 3440. “If a railroad company employs or retains in its service a conduc- 
tor, engineer, brakeman or switchman who uses intoxicating liquors as a bev- 
erage, such fact being known to the president, superintendent, or any one of 


b=) 


the directors of such road, such corporation shall forfeit not less than $300 or 
more than $3,000, with costs of prosecution, and shall also be liable for the 
damages which a person sustains by the employment or retention of such con- 
ductor, engineer, brakeman or switchman.”’ 

§ 3441. ‘If a person while in charge of a locomotive engine running upon 
the railroad of a corporation, or while acting as a conductor of a car, or train of 
cars, on such railroad is intoxicated, he shall be fined not more than $300, or 
imprisoned in the state prison not more than one year.” 

§ 3442. ‘* When an engineer, fireman, or other agent of a railroad corpora- 
tion is guilty of negligence or carelessness, whereby an injury is done to a person 
or corporation, he shall be punished by imprisonment not more than one year, 
or by fine not more than $1,000. But this section shall not exempt such corpo- 
ration from an action for damages by a person or corporation sustaining such 
injury.” 

Whether the word person would include a servant of the 
corporation injured by the negligence of a co-servant is a 
question needing interpretation. 

Similar laws punishing carelessness of railroad corpora- 
tions have been enforced in many of the States. We may take 
an illustration from the Revised Statutes of Maine: 


REVISED STATUTES (1883), TirLE IV, Cuap. 51, § 62 ET SEQ., Pace 481. 


- § 62. ‘No car disconnected from a train shall be left or permitted to re- 
main standing on the main track of any railroad unless accompanied by danger 
signals, such as flagging by day and lanterns by night. placed at such distances 
from such obstruction on the main line of the road, as will ensure safety to and 
from moving trains, and such signals shall be in charge of and constantly at- 
tended by employees of the corporation owning or operating the road.” 

§ 63. ‘*A railroad corporation violating any provision of the preceding 
section forfeits for each offence $10) to the State, to be recovered in an action 
on the case, or by complaint and indictment; and the Attorney General shall 
prosecute therefor. Said section does not apply to horse railroads.” 

§ 66. ‘‘ Whoever, having charge of a locomotive engine, or acting as con- 
ductor, brakeman or switchman is intoxicated while employed on a railroad 
shall be fined not exceeding $100, or imprisonment not exceeding six months, 
or both.” 

§ 67. ‘Any person employed in conducting trains who is guilty of negli- 
gence or carelessness causing an injury, shall be punished by imprisonment in 
jail not exceeding one year, or by fine not exceeding $1,000; but the corpora- 
tion employing him is not thereby exempt from liability.” 


Here again quaere whether this section would be construed 
in favor of a servant injured through the carelessness of a co- 


servant. 


§ 68. ‘‘ Any railroad corporation by whose negligence or carelessness, or by 
that of its servants or agents while employed in its business, the life of any 


46 Dit 


person in the exercise of due care and diligence is lost, forfeits not less than 
$509, nor more than $5,000, to be recovered by indictment found within one 
year, wholly to the use of his widow, if no children; and to the children if no 
widow; if both, to her and them equally; if neither, to his heirs.” 


Among other miscellaneous provisions regulating the con- 
struction and operation of railroads in the interest of the 
safety of the employees’ we may notice a provision in Maine 
requiring trains to stop before passing a track crossing : 


Laws oF 1885, CHAP. 336. 


‘“ When railroads cross each other at grade the parties operating the rail- 
road last located there, shall build and maintain a suitable signal station at 
such crossing, at which a competent signal officer shall be kept at the joint ex- 
pense of the parties operating the railroads. The signal shall not be set for a 
train to cross until the engine of such train shall have arrived within 500 feet of 
the intersection and stopped; and no train or engine shall cross the track of the 
other road until the proper signal for it to cross shall have been set in position 
by the signal officer 3 a i hth 


Also a regulation of switches at sidings: 


Laws oF 1887, CuHap. 76, § 1. 


‘¢ Every railroad company running express trains in this State, shall place 
Safety switches of an improved sort at every siding connected with the main 
track; switch lights shall also be maintained throughout that portion of every 
railroad where trains are run after dark.” 


The Public Statutes of Massachusetts, and the same pro- 
vision is nearly universal in this country, require as follows: 


PUBLIC STATUTES, CHAP. 112, PaGE 632. 


§ 171.—‘: Every railroad corporation shall equip each of its trains, for use 
in case of accident, with two guide plates, two jack screws, two crow-bars, one 
pinch bar, one claw bar, one spike hammer, two sharp axes, ropes or chains 
suitable for hauling cars, and such other tools and appliances as the Board (i.e. 
of R. R. Commissioners) may direct. Fora violation of the provision of this 
Act the corporation shall forfeit $500.” 


As AMENDED By Act oF Apri 11, 1883. 


§ 179.—‘* No railroad corporation shall employ or keep in its employment, 
in a position which requires the person employed therein to distinguish form or 
color signals, any person, unless he has been examined for color blindness or 
other defective sight by some competent person employed by the corporation, 
and has received a certificate that he is not disqualified for such position by 
color blindness or other defective sight. A railroad corporation shall forfeit 
$100 for each violation of the provisions of this section.” 


be BANS 


The Act of April 2d, 1886, of the same state requires that 


Act oF APRIL 2, 1886. 


§ 1.—‘‘ Every railroad corporation operating a railroad or part of a railroad 
in this commonwealth, shall before the 1st day of January in the year 1887, 
adjust, fit or block the frogs, switches and guard rails on its track, with the 
exception of guard rails on bridges, so as to prevent the feet of its employees 
from being caught therein. The work shall be done to the satisfaction of the 
railroad commissioners evidenced by the certificate of their clerk.” 

§ 2.—Provides a penalty of not less than $100 or more than $1,000 for 
failure to comply with the provisions of the preceding section. 


As a frequent source of accident is the wedging of the 
workmen’s feet in the tracks, the benefit of the foregoing pro- 
vision may be readily seen. 

_ In Connecticut a series of Acts makes the use of bridge 
guards compulsory wherever the same are deemed necessary 
by the railroad commissioners, and fixes a penalty.of twenty- 
five dollars for each day’s disobedience to the Act. 

Perhaps two of the most frequent causes of accidents of a 
disasterous nature upon railroads are negligence in setting 
switches properly, and the necessity of going between the ends 
of the cars in order to couple them. New York has sought to 
eliminate these factors by the following laws: 


CuHap. 439, Laws or 1884. 


§ 1.—<‘‘ Steam railroads shall hereafter lay in the construction of new and 
in the renewal of existing switches upon freight or passenger main line tracks, 
switches on the principle of either the so-called Tyler, Wharton, Lorenze or 
split point switch, or some other kind of safety switch which shall prevent the 
derailment of a train when such switch is misplaced, or a switch interlocked 
with distant signals. For each switch laid in violation of the provisions of this 
section, the corporation, person or persons operating said railroad shall be 
liable to a penalty of not exceeding $100, and to the further Pepa of $5 for 
each day that such switch is used.” 

§ 4 —*‘ After July 1st, 1886, no couplers shall be placed upon any new 
freight car to be built or purchased for use, in whole or in part, upon any steam 
railroad in this State, unless the same can be coupled and uncoupled automati- 
cally without the necessity of having a person guide the link, lift the pin by 
hand, or go between the end of the cars. The corporation, person or persons 
operating said railroad, and violating the provisions of this section, shall be 
liable to a penalty of not more than $100 for each offense.” 

§ 6.—‘* After the expiration of one year from the passage of this Act, no 
steam railroad shall use for passenger transportation any car to which an auto- 
matic air brake, or other form of safety power brake, applied from the locomo- 


Se yon 


tive, shall not be attached. The provisions of this section shall not apply to any 
cars attached to freight trains the schedule rate of pecae of which does not ex- 
ceed twenty miles an hour * *k *» 


The former statute revises the opinion in the case where 
the judges in New York held that a common switch is as safe 
as any other; and is a good illustration of the proper method 
of curing the hasty conclusions of the judges, and of broaden- 
ing the scope of the common law where it is too narrow for 
modern conditions. 

The provision as to couplers is one of the most humane 
laws regulating railroads. The work of shunting or coupling 
cars is generally done by raw and poorly paid hands, accidents 
are consequently exceedingly numerous. Many states require 
safety couplers on passenger trains, but New York in insisting 
upon their use on freight cars as well, has fully shown her 
interest in the protection of the laboring class. 

The weight of the rails to be laid in the construction of 
the road, is also regulated. 


REVISED STATUTES, 7TH Ep., PAGE 1557, L. 1850, Cuap. 140, N. Y. 


§ 27. **No company formed under this act shall lay down or use in the con- 
struction of their road any iron rail of less weight than fifty-six pounds to the 
lineal yard on grades of one hundred and ten feet to the mile or under, and not 
less than seventy pounds to the lineal yard on grades of over one hundred and 
ten feet to the mile, except for turn-outs, sidings and switches, provided this 
section shall apply only to roads now being constructed or hereafter to be con- 
structed, when the gauge of said road exceeds four feet or over.” 


Alabama requires applicants for license, as railway engi- 
neers, to pass a rigid examination. 


Laws 1887, Pace 100. 


§ 1. ‘‘Be it enacted, &c., That it shall be unlawful for the engineer of any 
railroad train in this State to drive or operate or engineer any train of cars or 
engine upon the main line or road-bed of any railroad in this State which is 
used for the transportation of persons, passengers or freight, without first un- 
dergoing an examination and obtaining a license as hereinafter provided. 

§ 2. ‘And beit enacted, &c., That before any locomotive engineer shall oper- 
ate or drive any engine upon the main line or road-bed of any railroad in this 
State used for the transportation of persons or freight, he shall apply to the 
board of examiners hereinafter provided for in this act, and be examined by 
said board or by two or more members thereof, in practical mechanics, and con- 
cerning his knowledge of operating a locomotive engine and his competency as 
an engineer.” 


a's 


§ 3. If he is found competent he receives a license. 

§ 4. The examiners must inquire into the character of the applicant, and in 
no case shall they issue a license where the applicant is found to be reckless or 
intemperate. 

§ 5. The license is to be forfeited if at any time the licensee is guilty of any 
act of recklessness, carelessness or negligence, while running a train, or is in- 
toxicated within six hours before or while he is so running a train. 


The rest of the act applies to its administration. 

Michigan prescribes that safety guards shall be placed in 
the vicinity of bridges, constructed with pendant straps, so 
placed as to brush against a brakeman on the top of the cars, 
and give him sufficient warning of his approach to a low bridge, 
so that he can avoid being injured. 


HowELu’s ANNOTATED STATUTES PAGE 883. 


§ 3437.—‘‘ That wherever in the State of Michigan there shall be over, 
above or across any of the tracks of any railroad, a bridge, crossing, viaduct, 
or other obstruction, at a height of less than seven feet above the roof of the 
freight cars used or hauled over said road, and wherever there shall be upon 
any railroad in the State of Michigan any bridge or other structure that shall 
have over or above any track of said road a transverse beam, girder, rod, or 
other obstruction at a height less than that above mentioned, it shall be the 
duty of the officers of such railroad to erect and keep in repair at or near such 
bridge, crossing, viaduct or other obstruction, safety guards, made and placed 
as provided for in Section two of this Act.” 

§ 3438.—*‘ The Safety guards mentioned in Section one of this Act shall 
consist of a transverse rod, beam or timber, placed above the track or tracks 
of said railroad at a height and at such distance from the bridge, viaduct, or 
other obstruction, as the Commissioner of Railroads shall direct; and from 
said rod or beam shall be suspended straps, ropes or cords of such size and of 
such length as the said Commissioner shall also direct. The said ropes or cords 
shall be attached to said transverse rod or beam at a distance not greater than 
nine inches from each other, for the space of eight feet directly above the track. 
Said guards shall be placed on each side of such bridge, viaduct or other ob- 
struction, Privided, that if two such bridges or other obstructions shall be at a 
less distance apart than one hundred feet, then no guard shall be required 
between them.” 

§ 5439 fixes the penalty and prescribes the method of enforcing Act. 


The work of the coal miner is proverbially dangerous, and 
has in consequence received large legislative attention. Penn- 
sylvania, the principal seat of this industry in America, has 
enacted an exhaustive and efficient statute, whose provisions 
and details even, have been copied by nearly all the coal 
mining states. This act is given here in extenso, for it is an 


ey ll 


admirable example to show to what an extent legislation can 
go in details for the protection of workmen in dangerous in- 
dustries. 


Act. 3d, Marcu, 1870, Act To PROVIDE FOR THE SAFETY OF MINERS. SEE 
BRIGHTLEY’S PurDON’s DickEst, Pace 1180. 


§ 14.—‘‘The owners or agents of every coal mine or colliery shall provide 
and establish for every such coal mine or colliery, an adequate amount of ventila- 
tion, of not less than fifty-five cubit feet per second of pure air, or thirty-three 
hundred per minute, for every fifty men at work in such mine, and as much more 
as circumstances.may require, which shall be circulated through the face of 
each and every working place throughout the entire mine, to dilute and render 
harmless and expel therefrom the noxious, poisonous gases, to such an extent, 
that the entire mine shall be in a fit state for men to work therein, and be free 
from danger to the health and lives of the men by reason of said noxious and 
poisonous gases; and all workings shall be kept clear of standing gas. The 
ventilation may be produced by using blowing machines, air pumps, forcing or 
suction fans of sufficient capacity and power, or other suitable appliances, as 
to produce and insure constantly an abundant supply of fresh air throughout 
the entire mine; but in no case shall a furnace be used in the mine, where the 
coal breaker and schute: buildings are built directly over and covering the top 
of the shaft, for the purpose of producing a hot upeast of air; and there shall 
be an intake air way of not less than twenty-square feet area, and the return 
air way shall not be less than twenty-five square feet.” 

§15.—‘‘The better to secure the ventilation of every coal mine and 
colliery, and provide for the health and safety of the men employed therein, 
otherwise, and in every respect, the owner or agent, as the case may be, in 
charge of every coal mine or colliery shall employ a competent and practical 
inside overseer, to be called mining boss, who shall keep a careful watch over 
the ventilating apparatus, over the air ways, the travelling ways, the pumps 
and sumps, the timbering, to see, as the miners advance in their excavations, 
that all loose coal, slate or rock overhead is carefully secured against falling 
over the arrangements for signalling from the bottom to the top and from the 
top to the bottom of the shaft or slope, for the purpose of talking through, 
and all things connected with and appertaining to the safety of the men at work 
in the mine. 

He or his assistants shall examine carefully the workings of all mines gen- 
erating explosive gases every morning before the miners enter the coal mine or 
colliery, and shall ascertain that the mine is free from danger, and the work- 
men shall not enter the mine until such examination has been made and re- 
ported and the cause of danger, if any exists, be removed; and he or his 
assistants shall also, every evening when the workmen leave the mine or colliery, 
go over the mine and see that the doors of the passage ways are all properly 
closed, and that all the air ways are free and unobstructed to the passage of air 
through them; and it shall be the duty of the mining boss to measure the ven- 
tilation, at least once per week, at the inlet and outlet, also at or near the face 


SER 


of all gangways; and all measurements to be reported to the inspector once 
per month. 


§ 16.—‘* All and every of the safety lamps used in coal mines or collieries 
Shall be the property of the owner thereof, and shall be under the charge of a 
suitable person, under direction of the mining boss, who shall keep them clean 
and in good order; and the mining boss shall provide that all doors used in 
assisting or in any way affecting ventilation of the mine, shall be so hung and 
adjusted as that they will close of their own accord and cannot stand open; 
and the main air doors on the travelling roads shall be double, and an extra 
door shall be fixed to be closed only in the event of an accident to one of the 
others, and the sides and top of such door shall be well built with stones and 
mortar, in mines in which the inspector shall deem it necessary and so order; 
and all main doors shall be provided with an attendant, whose constant duty 
it shall be to guard them and prevent them being left open; and every 
mine having explosive gas, in each and every part of such mine or mines, shall 
be divided into two, four, or more panels or districts, each ventilated by a sep- 
arate spit-or current of air and fifty persons shall be the greatest number 
that shall work in the mine at the same time; and door holes shall be kept 
twenty feet in advance of the face of each and every place, and if necessary, 
on both sides, when the same is driven towards or approaching an abandoned 
mine, or part of a mine, suspected to contain inflammable gases, or which is 
inundated with water.” 


§ 17.—‘* The owner or agent of every coal mine or colliery opened and 
operated by shaft or slope, shall provide and maintain a metal tube from the 
top to the bottom of such slope or shaft, suitably calculated and adapted to the 
free passage of sound therein, through which conversation may be held by and 
between persons at the bottom and the top of such shaft or slope; and also the 
ordinary means of signalling from and to the top of the shaft from the bottom; 
and also provide an improved safety catch and a sufficient cover overhead on 
every carriage used for lowering or hoisting persons; and they shall provide 
and arrange that flanges or horns of sufficient dimensions are attached to the 
sides of the drum of every machine that is used for lowering or hoisting per- 
sons in or out of any mine; an adequate brake shall be attached to every drum 
or machine worked by steam or water power, that is or will be used for lowering 
or raising into or out of any said mines, and the main link attached to the 
Swivel of the wire, or any other rope, shall be made of the best quality of iron 
and tested by weights or otherwise, satisfactorily to the inspector; the bridle- 
chains shall be attached to the main link from the cross pieces of the carriage, 
and no single link chains shall be used for lowering or raising persons into or 
out of any said mines, and no boy under twelve years of age shall work or enter 
any mine, and proof must be given of his age, by certificate or otherwise, 
before he shall be employed; and no father or any other person shall conceal or 
misrepresent the age of any boy. The neglect or refusal of any person or 
party to perform the duties provided for and required to be performed by §§ 6, 
7, 8,9 and 10 of this act, (that is 14, 15, 16 and 17 as numbered here), by the 
parties therein required to perform them, shall be taken and be deemed a mis- | 
demeanor by them, or either or any of them, and upon conviction thereof, they 


a jo Liles 


or any or either of them, shall be punished by imprisonment or fine not ex- 
ceeding $500, or either, at the discretion of the court trying the same.” 

§ 18.—‘‘No owner or agent of or at any coal mine or colliery operated by 
shaft or slope, shall place in charge of any engine whereby the men are lowered 
into or hoisted out of the mine, any but experienced, competent, sober en- 
gineers; and every engineer so placed in charge of an engine, shall not allow 
any person, except such as may be deputed by the operator or agent, to touch 
or meddle with it, or any part of its machinery; he shall work his engine slowly 
and with great care when any person is ascending or descending the shaft or 
slope, the men at the bottom or top, as the case may be must inform the en- 
gineer by the metal tube, the signal, or otherwise, thereof, and no one shall 
interfere with or in any wise intimidate the engineer in the discharge of his 
duties, nor ride upon a loaded wagon or cage in any shaft or slope; and when- 
ever ten men shall have arrived at the bottom of any shaft or slope, they shall 
be furnished with an empty wagon or cage to ride up; and in no case shall 
more than ten men ride on any wagon or cage at one time, in any of said mines; 
and upon any person violating the provisions of this section he shall be deemed 
guilty of a misdemeanor, and upon conviction thereof shall be punished by fine 
and imprisonment, at the discretion of the court trying the same.” 

§ 21.—‘‘In no case shall any gangway, entry or room be in advance of the 
air course more than 100 feet; and as soon as any explosive gas is known to 
exist in any coal mine. in sufficient quantity to cause an explosion or endanger 
the lives of any person employed in said mines, the owner, lessee, operator or 
agent thereof shall employ a fire viewer, who shall carefully examine the work- 
ings with a safety lamp every morning before any of the miners are allowed to 
enter; he shall watch over the ventilating apparatus, and keep the same free 
and unobstructed to the passage of air through.” 

§ 23.—‘‘The owner, lessee, operator or agent of every coal mine shall employ 
no person for engineer, who has not attained the age of eighteen years, for the 
purpose of lowering or hoisting persons in any coal mine ; and inall cases must 
be an experienced, competent and sober man. All boilers used for generating 
steam in or about coal mines shall be kept in good order, and the owner, 
lessee, operator or agent thereof shall cause them to be examined and inspec- 
ted at least once in every four months.” 

§ 25.—‘‘ Whenever loss of life shall occur in any coal mine, the party having 
charge thereof shall give notice forthwith to the Coroner of the County, who 
shall cause an inquest to be held to investigate and ascertain the cause of such 
accident; and if proven that such accident was caused by neglect or careless- 
ness of said owner, lessee, operator or agent of such mine, said owner, lessee, 
operator or agent thereof shall be held liable in damages.” 

§ 26.— Provides penalties for any person who injures any of the apparatus 
of the mine, or who carries lighted matches in amine worked with safety lamps, 
or who disobeys orders of the authorities of the mine, or who in any manner 
endangers the lives of the miners. 

§ 27.—Provides the penalty for a violation of the pfovisions of this act. 

§ 28.—Provides that a copy of the act shall be conspicuously posted. 

§ -9.— Provides for the maintenance of ambulances. 

§ 30.—How said ambulances must be constructed. 

§ 31.—Custody of said ambulances. 


wating Wea 


§ 32.—In case a miner is injured at a distance from his home, he may be 
carried by railroad, provided the comfort of the injured person be duly provided 
for. 

§ 33.—The mine inspectors must institute proceedings against any one 
violating this act 

§ 35. —This act not to apply where less than 20 men are employed. 

§ 37.—‘ It shall be the duty of the owner, agent, lessee or foreman of any 
anthracite coal mine or colliery in this commonwealth, to furnish to the miner 
at his request, all props and timbers necessary for the safe mining of coal, and 
for the p otection of the lives of the miners. Such props and timbers shall be 
suitably prepared, and shall be delivered at such places in the mine as shall be 
designated by the inside foreman of said mine.” 

§ 38.—-**A failure to comply with the provisions of this act shall be taken to 
be negligence per se upon the part of the owner, lessee, agent or foreman of said 
coal mine, in any action for recovery of damages for accidents resulting from 
the insufficient timbering or proping of said mine. 


Act oF Marcu 3p 1870, P. L 9. 

Provides for the appointment of Inspectors of Mines and confers larger 
powers of inspection and investigation. 

A series of laws further regulating mining industries, and 
protecting miners, has been passed in eighteen eighty-five and 
subsequent years, which modify to some extent the provisions 
given ante. Space will not permit us to give these acts, which 
are very long, in extenso. We refer the inquisitive to ‘ Bright- 
ley’s Prudon’s Digest. p. 3241 et seq. 

The manufacturing States of the Union have enacted pro- 
visions looking to the health and safety of operatives employed 
in factories and workshops. These acts, although probably in 
no State as complete as the Kuropean factory legislation, have 
been enacted to meet the requirements existing in each particu- 
lar State, as the necessity for them appeared. 

To show in a general way the scope and nature of the pro- 
visions, without attempting to give a systematic presentation, 
we may notice for example the general factory act in force in 
Massachusetts. 

Pusuic StatutTes, Cu. 104., Pace 562. 


§ 13.—‘* The belting, shafting, gearing and chains of all factories, when 
so placed as to be, in the opinion of the inspectors mentioned in § 9 of chap. 103, 
dangerous to persons employed therein, while engaged in their ordinary duties, 
shall be as far as practicable securely guarded. No machinery, other than 
steam engines in a factory, shall be cleaned while running, if objected to in 
writing by one of the inspectors. All factories shall be well ventilated and 
kept clean.” 


uN oy fa 


§ 14—‘‘ The openings of all hoistways, hatchways, elevators, and well holes, 
upon every floor of a factory, shall be protected by good and sufficient trap 
doors, or self-closing hatches and safety catches, or such other safeguards as 
said inspectors direct; and all due diligence shall be used to keep such 
trap doors closed at all times, except when in actual use by the occupant of the 
building having the use and control of the same.” 

§ 15.—**‘ All factories three or more stories in height in which forty or more 
persons are employed, unless supplied with a sufficient number of tower stair- 
ways. shall be provided with properly constructed fire escapes, upon the out- 
side thereof, and connected with the interior by doors or windows, with suit- 
able landings at every story above the first including the attic, if the same is 
occupied for work rooms. Such fire escapes shall be kept in good repair, and 
free from obstruction. Fire escapes existing on the first day of July, in the 
year 1877, need not be changed in consequence of the provisions of this 
section, unless such change is necessary for the protection of life.” 

§ 16.—‘‘ Every room above the second story in factories or workshops, in 
which five or more operators are employed shall, except as provided in the fol- 
lowing section, be provided with more than one way of egress by stairways on 
the inside or outside of the building; and such stairways shall be, as nearly as 
may be practicable, at opposite ends of the room. Stairways on the outside of 
the building shall have railed landings at each story above the first, and shall con- 
nect with each story of the building by doors or windows opening outwardly; 
and such doors, windows and landings shall be kept at all times clear of ob- 
struction.” 

§ 17.—‘** A factory or workshop which before the 15th day of April, 1880, 
had proper fire escapes, in accordance with § 15, need not conform with the pro- 
visions of the preceding section, unless since such fire escapes were constructed 
there have been such changes in the building or in the number of persons em- 
ployed therein as to make it in the opinion of the inspectors necessary for the 
protection of life.” 

§ 18 —*‘ Said inspectors may accept such other provisions for escape in case 
of fire, instead of those required by § 16, as may seem to them to be ample 
for the purpose; but women oy children shall not be employed, above the second 
story, in a room from which there is only one way of egress.” 

§ 19.—‘* All the main doors both inside and outside in factories shall open 
outwardly, when the inspectors of factories in writing so direct. Each story 
shall be amply supplied with means for extinguishing fire.” 

§ 21.—‘*No explosive or inflammable compound shall be used in any fac- 
tory in such place or manner as to obstruct or render hazardous the egress of 
operatives in case of fire.” 

§ 22.—*‘* Any person, firm, or corporation being the owner, lessee or occu- 
pant of any manufacturing establishment, or owning or controlling the use of 
any building or room mentioned in § 20, shall for the violation of any pro- 
vision of §§ 18, 14, 15, 19, 20 or 21, forfeit for the use of the commonwealth not 
less than $50 nor more than $500, and also be liable for all damages suffered by 
any employee by reason of such violation; but no prosecution shall be made for 
such violation until four weeks after notice in writing by an inspector has been 


69 


sent by mail to such person, firm or corporation, of any changes necessary to 
be made to comply with the provisions of said sections; nor then if in the 
meantime such changes have been made in accordance with such notification. 
Nothing in this section shall be so construed as to prohibit a person from 
bringing an action to recover damages for said injuries.” 


The office of factory inspector exists very generally with 
power to visit and supervise workshops and factories and to 
see that the laws relating to the same are fully enforced. 

Penalties are further fixed for obstructing the means of 
egress from factories. 

AcT oF MARCH Ist, 1884. 


§ 1.—‘*No outside or inside doors of any building, wherein operatives are 
employed, shall be so locked, bolted or otherwise fastened during the hours of labor 
as to prevent free egress.”’ 

§ 2.—‘* Any person, firm or corporation, being the owner, lessee or occupant of 
any such building who shall, after receiving five days’ notice in writing from one 
of the inspectors of factories and public buildings, neglect or refuse to comply with 
the provisions of the preceding section, shall forfeit to the use of the Common- 
wealth not less than $10 nor more than $50.’’ 

§ 3.—‘* The inspectors of factories and public buildings shall enforce the provi- 
sions of this Act.’’ 


The General Factory Act of New Jersey, given below, has 
many admiring features. 
Cuap. CLXVIII. Laws 1885. 


‘6A GENERAL ACT RELATING TO FACTORIES AND WORKSHOPS, AND THE 
EMPLOYMENT, SAFETY AND HEALTH AND WorK HourRS OF OPERATIVES.”’ 


§ 1.—‘‘Be it enacted by the Senate, etc., That any person or corporation 
engaged in manufacturing which requires from persons in his or its employ, under 
penalty of forfeiture of a part of the wages earned by them, a notice of intention to 
leave such employ shall be liable to the payment of a like forfeiture if he or it 
discharges without similar notice a person in such employ, unless in case of a general 
suspension of labor in his or its shop or factory.” 

§ 2.—** That all accidents in workshops, factories or mines, which result in 
death, shall be reported at once by the occupier to the inspector of workshops at 
Trenton, and the city or district Se ei where one is employed as such, which 

notice may be given by mail.” 

§ 3.—‘‘ That the belting, shafting, gearing and drums in all factories and 
workshops when so placed as to be dangerous to persons employed therein while 
engaged in their ordinary duties, shall be securely guarded when practicable ; if 
otherwise, then a notice of its danger shall be conspicuously posted in the factory or 
workshop.”’ 

§ 4.—‘* That no minor, under eighteen years of age, or woman, shall be required. 
to clean any part of the mill gearing or machinery in any factory or workshop 
while the same is in motion, or work between the fixed or traversing part of any 


Aus; sake 


machine while it is in motion by the action of steam, water, or other mechanical 
power.”’ 

§ 5.—‘ That the openings of all hoistways, hatchways, elevators and well 
holes upon every floor of a factory, or mercantile or public building, shall be 
protected by good and sufficient trap-doors, or self-closing hatches and safety 
catches, or strong guard rails at least three feet high, and all due diligence shall be 
used to keep such trap doors closed at all times, except when in actual use by the 
occupant of the building having the use and control of the same,’’ 

§ 6.—‘*That no explosive or inflammable compound shall be used in any factory, 
in such place or manner as to obstruct or render hazardous the egress of operators in 
case of fire.”’ 

§ 10.—‘‘ That where the factories or workshops appear to be so overcrowded 
that in the opinion of the inspectors of factories there is danger to health, the 
inspectors shall have power, after being supported in his opinion by some reputable 
resident physician, to prohibit such overcrowding.” 

§ 11.—‘* That the inspectors of factories shall have power to order a fan or other 
mechanical means of proper construction, if practicable, for the purpose of preventing 
the inhalation of dust, in establishments where any process is carried on by which 
dust is generated and inhaled by the workers to an injurious extent.” 

§ 12.—** That all factories and mines be ventilated so as to render harmless all 
impurities as near as may be.”’ 

§ 13.—‘‘ That no cellar, room or place shall be occupied as a bakehouse, which 
is less than one-half of its height above the level of the street, footway or ground ad- 

joining the same, unless the following regulations are complied with: First, no water 
— closet, earth closet, privy or ash-pit shall be within, or communicate directly with 
the bakehouse ; second, no drain or pipe for carrying off sewage or other impure 
matter, shall have an opening within a bakehouse, unless such drain or pipe be 
trapped with a six-inch water seal, both within and without the wall of the bake- 
house, and have a ventilating pipe of one half the size of drain pipe, between the wall 
and the outer trap, and which ventilating pipe shall run two feet above the roof of 
the building. ”’ 

§ 14.—‘* That the sleeping places for workmen and others employed in bake- 
houses shall be separate and distinct from the places used for the making of bread.”’ 

§ 15.—Fixes the penalty for violations of any of the provisions of this act, and 
prescribed the form of action and method of procedure to be observed in any actions 
based upon such breach. 


CHAP. CLXXVII. Laws 1887, AMENDING PREVIous ACT. 

§ 1.-—Provides that any occupier of a factory or workshop must notifiy the 
inspector of such occupancy within one month of such occupancy. 

§ 2.—Amends § 2 of the act of 1885, to read as follows: ‘* That all accidents 
in workshops, factories or mines, which prevent the injured person or persons from 
returning to work within two weeks, or which result in death, shall within twenty-four 
hours after the expiration of such two weeks, or after the death, as the case may be, be 
reported by the person in charge of such workshop, factory or mine, to all of the 
factory inspectors, and to the city, or district physician where there is such an officer, 
which notice may be given by mail.”’ . 

§ 3 Amends § 6 of the act of 1885, so as to read, ‘* That no minor or woman 
shall clean any part of the mill gearing or machinery in any factory or workshop 


pera 


while the same is in motion, or work between the fixed or traversing parts of any 
machine while it is in motion by the action of steam, water or other mechanical power.”’ 

§ 6.—‘‘ That all the main doors, both inside and outside, in factories, shall 
open outwardly, when the inspectors of factories, in writing, so direct, and that no 
outside or inside door of any building wherein operators are employed, shall be so 
locked, bolted or otherwise fastened, during the hours ot labor, as to prevent egress.” 

§ 7.—‘* That no minor below the age of sixteen shall be employed at any work 
dangerous to health, without a certificate of fitness from a reputable physician.” 

§ 8.—‘* That factories and workshops and factories in which women and chil- 
dren are employed and where dusty work is carried on, shall be lime washed or 
painted at least once in every twelve months.” 

§ 9.—‘* That an abstract of the factory and workshop laws, to be prepared and 
furnished by the chief factory inspector, shall be affixed in a conspicuous place at the 
entrance of every factory and workshop.” 

§ 10.—‘‘ That if the inspector of factories finds that the heating, lighting, ven- 
tilating or sanitary arrangements of any shop or factory is such as to be injurious to 
the health of persons employed therein, or that the means of egress, in case of fire 
or other disaster, is insufficient, or that the belting, shafting, gearing, elevators, 
drums and machinery in shops and factories are located so as to be dangerous to 
employees, and not sufficiently guarded, or that the vats, pans, or structures filled 
with molten metal or hot liquid are not surrounded with proper safeguards for pre- 
venting accidents or injury to those employed at or near them, he shall notify the 
proprietor of such factory or workshop to make the alterations or additions necessary 
within thirty days; and if such alterations or additions are not made within thirty 
days from the date of such notice, or within such time as such alterations can be 
made with proper diligence upon the part of said proprietors, said proprietors or 
agents shall be deemed guilty of violating the provisions of this act; and it shall 
then be the duty of the inspectors to examine the matter in dispute, and, if adverse 
to the appellant, he shall carry out the alterations and additions directed by said 
inspectors within thirty days, as aforesaid, and under the same penalty.”’ 

§ 11.—Fixes the penalty and prescribes the method of procedure in an action 
brought for the breach of any of the provisions of this act. 


Wisconsin makes the following provisions for the safety of 
employees : 


Laws 1887, Cu. 549, PAGE 631, OVERCROWDING. 


§ 1.—‘‘No person, persons or corporation, shall employ and put to work in any 
factory, workshop, or other place of employment, or in any room or other part of such 
factory, workshop or other place of employment, more persons than the laws of 
health will warrant, as shall be determined by the board of health.” 

§ 2.—‘‘ Every stationary vat, pan, or other structure with molten metal or hot 
liquids shall be surrounded with proper safeguards for preventing accidents or injury 
to those employed at or near them. All belting, shafting, gearing, hoists, fly wheels, 
elevators and drums, of manufacturing establishments, so located as to be dangerous 
to employees when engaged in their ordinary duties, shall be securely guarded or 
fenced so as to be safe to persons employed in any such place of employment.”’ 

§ 3.—Penalty. 


6h) 


LAws 1887,CuH. 453, PAGE 496. 


§ 2.—‘‘ The said factory inspector, or any officer named in Section 1, of this 
act, shall have power to order full wheels, fly wheels, tumbling rods, elevator wells, 
stairways, shafting, or dangerous machinery of any kind to be guarded and protected, 
so as not to hazard the safety of workmen or visitors ; any person refusing to obey 
his orders in this respect shall be fined $50 for each and every offence.” 


Navigation and steam boiler inspection is regulated by fed- 
eral as well as state laws. A synopsis of the Congressional 
Act regulating steam vessels will sufficiently show the character 
of the provisions. 


U.S. R.S., Tir. LIL, REGULATION OF STEAM VESSELS, CH. I., INSPECTION. 
Synopsis of the chapter. 


§ 4399. —-What vessels are deemed steam vessels 

§ 4400.—What vessels are subject to the provisions of this title. 

§ 4401.—Vessels navigating coastwise and by the lakes. 

§ 4402 —Supervising Inspector-General: qualifications and appointment. 
§ 4403.—Duties of Supervising Inspector-General. 

§ 4404. —Supervising Inspectors, qualifications and appointment of. 

§ 4405.—Meetings of board ; assignments of districts. 

§ 4406.-~. Duties of Supervising Inspectors, 

§ 4407.—Duties of Supervising Inspectors as to violations of law. 

§ 4408. —Supervisions of local board. 

§ 4409. —Supervisions of disiricts not having inspectors. 

§ 4410.— Report of Supervising Inspector to board. 

§ 4411.—Regulations as to furnishing information to local inspectors. 
§ 4412.—Regulations as to steamers passing each other. 

§ 4413.—Penalty for violation of regulations. 

§ 4414.—Number and salaries of local inspectors. 

§ 4415.—Qualifications and appointment of local inspectors. 

§ 4416. —What persons are not eligible as inspectors, 

§ 4417,.—Inspection of hulls. 

§ 4418.—Inspection of boilers. 

§ 4419.— Control of safety valves and steam register. 

§ 4420.—Amount of steam pressure allowed freight boats on the Mississippi river. 
§ 4421.—Certificate of inspection. 

§ 4422.—License by inspectors to carry gunpowder, 

§ 4423.—Disposal of certificate of inspection. 

§ 4424. Penalty for carrying passengers or gunpowder contrary to law. 
§ 4425.— Punishment of inspector certifying falsely. 

§ 4426.--Ferry boats, canal boats, yachts, etc, 

§ 4427.—Tug boats, freight boats, etc. 

§ 4428. Construction of boilers. 

§ 4429.—Punishment for improper construction of boilers, 

§ 4430.—Inspection of boiler plates. 

§ 4431.—Stamping of boiler plates, 


bay 


§ 4432. Punishment for counterfeiting stamps. 

§ 4433.—Pressure of steam allowable. 

§ 4434.-—Thickness of boiler plates and space between flues. 
§ 4435.—Feed and connecting pipes. 

§ 4436.—Safety valves, fusible plugs. 

§ 4487.—Punishment for obstructing safety valves, etc. 

§ 4438. —Licensing of officers by inspectors. 

§ 4439.—Licensing of Captain. 

§ 4440.—Licensing of Chief Mate, 

§ 4441.—Licensing of Engineer. 

§ 4442, —Licensing of Pilot. 

§ 4443, —Licensing of Captain or Mate as Pilot. 

§ 4444.—State regulation of pilots. 

§ 4445.—Oath of licensed officers. 

§ 4446.—License to be exhibited. 

§ 4447.—Renewal of officer’s license. 

§ 4448.—Licensed officers to assist inspectors in examinations. 
§ 4449.—Revocation of officer’s licenses for refusal to serve. 
§ 4450.—Investigation of conduct of officers. 

§ 4451.—Payment of marshal and witnesses. 

§ 4452. Appeal to supervising inspectors. 

§ 4453. —Re-inspection and notice for repairs. 

§ 4454.—Penalty for failure to make repairs on notice. 

§ 4455.—Effect of decision by inspectors. 

§ 4456.—Inspection in districts not having inspectors. 

§ 4457.—Records and reports by local inspectors. 

§ 4458.—Fees. 

§ 4459.—Bonds of Inspectors. 

§ 4460.—Instruments, printing, stationery, etc., for local inspectors. 
§ 4461.—Payment of salaries and expenses. 

§ 4462.—Regulations to be made by the Secretary of the Treasury. 


Many of the states having navigable waters within their 
boundaries, have supplemented the foregoing provisions with 
laws of their own. Thus in Maine we find an act that in 

REVISED STATUTES, (1883), Tir. IV., CuHap. 52., Sec. 11, ET SEQ. PAGE 497. 


§ 11 Provides that all steamboats carrying passengers upon inland waters are 
subject to the provisions of this Chapter, and before so carrying must be inspected 
and receive certificate of inspection. 

§ 12 Provides for the appointment of inspectors. 

§ 13.—‘*‘ All vessels mentioned in § 11 shall be so constructed that the wood- 
work about the boilers, chimneys, fire boxes, cook houses, stove and steam pipes, 
exposed to ignition, shall be so shielded by some incombustible material, that the air 
may fully circulate between such material and woodwork, or other ignitable sub- 
stances, and before granting a certificate of inspection, the inspectors shall require 
all other necessary provisions to be made throughout such vessel asthey may judge ex- 
pedient to guard against loss or damage by fire.” 


i); 


§ 14 Provides for the equipment of every such steam boat wiih life boats with 
life lines attached, and for the exercise and disciplining the crew in launching and 
managing the same. 

§ 16 Provides for life preservers, fire buckets and axes. 

§ 17.—‘* The inspectors shall annually, or oftener, if they have good cause to 
believe it reasonable, inspect every vessel of the description mentioned in § 11, 
examine carefully her hull, engine, boiler, boats and other equipments, apply proper 
tests to her boilers, ascertain how long it will be safe to use the same, determine the 
pressure of steam to be allowed, and so regulate the fusible plugs, safety valves and 
steam cocks, as to insure safety ; and they may require such changes, repairs and 
improvements to be adopted and used as they deem prudent for the contemplated 
route i , aed 

§ 20.—‘‘ Every person employed as master, pilot, or engineer on such vessel, shall 
be examined by the inspectors as to his qualifications, and if satisfied therewith they 
shall grant him a license for the office for one year = se i) *, Whoever 
acts as master, pilot, or engineer, without having first received such license, shall 
be fined $50 for every day he soacts * * ie BK 

§ 22.—‘‘If the death of any person is caused by such explosion, or in case of 
fire, his executors or administrators may recover therefor from the owners or 
master of the vessel * * * * such damages not exceeding $5,000 as the jury 
assesses * * * * zf any of the crew of said vessel, or persons in her employment, 
thus sustain injury, his executors or administrators are entitled to all the benefits of 
this section, if the jury are satisfied that the negligence of the party thus injured did 
not occasion or contribute materially to the injury.’’ 


The above law is worthy of notice since it allows recovery 
to injured workmen in this field of labor where the accident 
occurred through carelessness of fellow-laborers, yet without 
repealing the common law doctrine of co-service. This is 
simply made an exception to the rule. 

The laws of Massachusetts give the power of inspection 
and control of steam boilers, as follows: 

PuBLIC STATUTES. CHAP. 102, PAGE 545. 


§ 49.—‘‘ The fire commissioners of the city of Boston, the mayor and aldermen 
of any other city, or the select men of a town, or any person by them authorized, 
may, after notice to the parties interested, examine any steam engine or steam 
boiler therein, whether fixed or portable, and for that purpose may enter any house, 
shop or building ; and if upon such examination it appears probable that the use of 
such engine or boiler is unsafe, they may issue a temporary order to suspend such 
use ; and if after giving the parties interested, so far as known, an opportunity to 
be heard, they adjudge such engine or boiler unsafe or defective or unfit to be used, 
they may pass a permanent order prohibiting the use thereof until it is rendered 
safe. If after notice to the owner or the person having charge thereof, such engine 
or boiler is used contrary to either of such orders, it shall be deemed a common 
nuisance, without any other proof thereof than its use.”’ 

§ 50.—Provides that the fire commissioners, mayor and aldermen and selectmen 
may abate and remove such a boiler or engine as is mentioned in the previous section 


—>S— 
in like manner as the board of health may remove nuisances under sections 21, 22 
and 23 of Chapter 80. 

§ 51,—‘* No person shall manufacture, set up, use or cause to be used, a steam 
boiler, unless it is provided with a fusible safety plug. made of lead or some other 
equally fusible material, and of a diameter of not less than one-half an inch, placed 
in the roof of the fire box, when a fire box is used, and in all cases in a part of the 
boiler fully exposed to the action of the fire, and as near the top of the water line as 
any part of the fire surface of the boiler ; and for this purpose Ashcroft’s ‘ protected 
safety fusible plug’ may be used.” 

§§ 52 and 53 impose a fine of not more than $1 000 on any person who without 
proper cause removes such safety plug and substitutes therefor a plug made of less 
fusible metal, or who manufactures, sets up, or knowingly uses or causes to be used 
for six consecutive days, a steam boiler unprovided with a fusible safety plug as 
described in §51. 


Alabama requires examination and license by state officials, 
to enable all to run steam vessels. 


Cops, PART 1) Tate 22) Cea pACiwLL 


§ 1845.—‘*‘ There is established in the city of Mobile a board of engineers, for 
the purpose of examining engines of steam boats, engaged in navigating the waters 
of this state, emptying into Mobile bay.” 

§ 13851.—°*‘ Such board must examine all applicants and ascertain their qualifi- 
cations to act as engineers, and the grade in which they are qualified to act; and if 
satisfied from such examination that they are qualified to act as first, or second 
engineers, must on the payment of the lawful fees, give them a certificate accordingly, 
such certificate must specify the grade in which they are qualified to serve, and must 
be signed by the president and secretary. ”’ 

§ 1853.—‘*If any captain or owner of any such boat employs or permits any per- 
son not having such certificate to act as engineer on such boat, or employs or permits 
any engineer to act thereon out of the grade specified in such certificate, he forfeits for 
each trip such person is so employed or acts, $200, one-half to the use of the person 
suing for the same, the other to the use of such corporation (i. e., of inspectors).” 

§ 13855.—‘‘If any one sustains any injury on his person or property from the 
explosion of a boilor, or of any apparatus connected therewith, on any such steam 
boat, and the person acting thereon as engineer has not obtained such certificate, or 
is acting out of the grade therein specified, except as provided in the preceding 
section (i. e€., exceptions in case of sickness of the engineer), the person sustaining 
such injury may recover from the captain or owners of such boat, or any one or more 
of them, treble damages therefor.”’ 

§ 1356.-— Provides that if the explosion cause death, the representative may sue, 

§ 1358.—It is the duty of the board to prosecute all offenders who do not comply 
with the provisions of this act. 

§ 1363.—‘* No steam boat must carry freight or passengers on any of the navi- 
gable waters of this state emptying into Mobile Bay, without having undergone a 
thorough survey and examination by the board, harbor master and wardens of the 
port of Mobile, and such board is required to make such survey and examination as 
often as may be necessary ; but at least once in each year.” 


oa 


“60. 


§ 1364.—A certificate is to be granted if the boat is river worthy. 

§ 1365.—If any boat carries freight or passengers without obtaining such certifi- 
cate, the masters or owners are liable for all damages arising therefrom. 

§ 1371.—Provides for a registration of the names of all piarneoats and their 
owners. ; 


Sometimes we find in the statute books laws that seem to 
be general enough in their language and broad enough in their 
scope to allow recovery to workmen injured by the negligence 
of co-servants, in spite of the doctrine of the common law. 
Thus in Mississippi we find it enacted that— 


REVISED CopE, 1880, § 1054. 

§ 1054. ‘* Every railroad company shall be liable for all damages which may 
be sustained by any person, in consequence of the neglect or mismanagement 
of any of their agents, engineers or clerks; or for the mismanagement of their 
engines; but for injury to any passenger upon any freight train not being in- 
tended for both passengers and freight, such company shall not be liable ex- 
cept for the gross negligence or carelessness of its servants.” 

But the court held in construing the foregoing section that 
“This statute does‘not embrace, nor is it so intended, the 
agents and employees of a railroad company, but they stand 
on their common law rights.” * The same has been held in all 
States where such general sections have been construed by the 
Courts. It is therefore unsafe to argue that any statute 
changes the common law rule unless it is so explicit in its 
terms as to permit of no other construction. 

It may be taken as the universal purpose of the Courts, 
unless provision for remedy in case of accident through negli- 
gence of co-servants is expressly made by statute to strictly 
apply the common law rule. In Missouri, for instance,t where 
a right of action is given by statute against railways, “ wher- 
ever any person shall die from any injury, resulting from or 
occasioned by the negligence, unskilfulness or criminal intent 
of any officer, agent, servant or employee,” the Court held that 
the common law rule of co-service was not affected. In Maine, 
too, the Court in interpreting that section of the revised stat- 
utes of that State, that reads, “Every railroad corporation 
shall be liable for all damages sustained by any person in con- 





* 49 Miss., 258; 43 Miss., 218, 233 and 279. 
7 Proctor vs. R. R., 64 Mo., 112, 


sequence of any neglect of the provisions of the foregoing sec- 
tion, or of any other neglect of any of their servants, or by any 
mismanagement of their engineer, in an action on the case by 
the person sustaining such damages,” the Court held that 
“statutes, unless plainly to be otherwise construed, shall re- 
ceive a construction not in derogation of the common law,” | 
and therefore decided that the words “any person” in this 
statute do not include employees.* So, finally, the Supreme 
Court of the United States, the tribunal of last resort, held 
that a statute enacting that ‘‘the corporation owning the rail- 
road shall be liable to any person injured for all damages” in- 
curred by reason of failure to ring the locomotive bell, did not 
include the case of a brakeman injured by such failure on the 
part of the fireman, his co-employee.t 

In Illinois we find the safety of agricultural laborers pro- 
vided for in the following enactment: 


REVISED STATUTES, 1887, CHap. 70, PAGE 801. 


§ 3.—‘ Be it enacted, &c., That all persons in this State who are or may 
hereafter own orrun any threshing machine, corn sheller, or any other machine 
which is connected to a horse power by means of tumbling rods or line of 
shafting. shall cause each and every length or section of such tumbling rod, 
(except the one next the horse power,) together with the knuckles or joints 
and jacks thereof, to be safely boxed or secured while running.” 

§ 4.—Any person owning or running a machine without complying with the 
provisions of the previous section shall be held liable for any damage resulting 
therefrom to any person, nor can an action be sustained for services rendered 


with such machine. 

The common law doctrine of co-service has lately been 
vigorously attacked by the sympathizers of the laboring class- - 
es, and, as a result, in quite a few of the commonwealths stat- 
utes specifically altering this part of the law have been 
enacted. 

The pioneer State in this respect, in this country, was one 
noted for the ability of its bench and bar, but one in which 
one should suppose the economic conditions should not first 
require the amendment of this law. That State was Georgia, 
that in the years 1855 and 1873 passed the following acts now 
incorporated in the code of that State: | 


* Carle vs. R. R., 43 Me., 269. 
+ Randall vs. R. R., 109 U.S., 478, 


nad (es 


CovDE 1882, § 3036, Part II, Cuap. 3, TTL III, Pace 762. 


§ 3036.—‘*‘Injury by co-employee. If the person injured is himself an employee 
of the company (i. e., railroad company), and the damage was caused by an- 
other employee, and without fault or negligence on the part pf the person 
injured, his employment by the company shall be no bar to the recovery.” 


See also cases cited in note to this section. 


CopE of 1882, § 2083, Parr II, Tirne III, Cuap. 2, Pace 509, Act or 1855. 

§ 2083 — ‘Railroad companies are common carriers and liable as such. As 
such companies necessarily have many employees who cannot possibly control those 
who should exercise care and diligence in the running of trains, such companies shall 
be liable to such employees as to passengers for injuries arising from the want of such 
care and diligence.” . 

This exception to the common law is however strictly lim- 
ited to the case of railroads. The Courts, after some difficulty, 
have finally recognized that these sections allow a recovery 
where the injured workman is free from contributory negli- 
gence. 

The State next in chronological order to amend the law 
was Lowa, where the common law rule prevailed until 1862, 
in which year the following provision became law: 


McOuain’s ANNOTATED StatTuTEs, Cu. 5, Tit. X, PaGE 357. 

§ 1309.—‘‘ Every corporation operating a railroad shall be liable for all 
damages sustained by any person, including employees of such corporation, in 
consequence of the negligence of agents, or by any mismanagement,of the 
engineers or other employees of the corporation, and in consequence of the 
wilful wrongs, whether of commission or omission, of such agents, engineers 
or other employees, when such wrongs are in any manner connected with the 
use and operation of any railroad on or about which they shall be employed, 
and no contract which restricts such liability shall be legal or binding.” 

But under this section the plaintiff is not relieved from his 
obligation to make out freedom from contributory negligence.* 

The jealousy of the Courts has also somewhat impaired 
the beneficial effect of the law since it held that: 

“This section extends only to such employees as are en- 
gaged in the hazardous business of operating the railroads, and 
not those whose employment is not connected therewith,t and 
is therefore not unconstitutional.” { ‘A workman in the shops 
of the company is not within the provisions of the section.”$ 
‘‘But a person working on a bridge and required to ride on 


* Murphy vs. R. R. 45 Iowa, 661. 
{ 41 Iowa, 344. { 20 Iowa, 338, § 46 Iowa, 399, 


—79— 


the cars of the company is.”* “And so is a section hand.” 
“ A hand engaged in shovelling gravel from a gravel train.’} 

Kansas followed in 1874 with a provision later incorporated 
into the Compiled Laws of that State. 


ComPILED Laws 1885. Cu. 84 PaGE 776. Doctrine oF Co-SERVICE ABOLISHED. 
§ 29—‘ Every railroad company organized in doing business in this State 
shall be liable for all damages done to any employee of such company in con- 
sequence of any negligence of its agents, or by any mismanagement of its 
engineers or other employees to any person sustaining such damages. 

But in this State the purpose of the legislature has not 
been frustrated to such an extent as in Iowa. It was held, in 
construing this act, that a man employed to work about the 
track and yard of a railroad company could recover for the 
consequences of the negligence of a co-servant, thus not limit- 
ing the remedy to those employed in the occupation of 
actually running the trains. 

The history of the reform legislation in Wisconsin has been 
curious. Up to the year 1875 the common law rule of non- 
liability was in full force. In that year was passed the follow- 
ing act: 

R. S. 1878. Cu. 87, PAGE 530. REPEALED BY CH. 262 Laws 1880. 


§ 1816.—‘‘ Every railroad corporation shall be liable for all damages sus- 
tained by any agent or servant thereof by reason of the negligence of 
any other agent or servant thereof, without contributory negligence on his 
part, when sustained within this State, or when such agent or servant is a resi- 
dent of and his contract of employment was made in this State, and no contract, 
will or regulation between any such corporation and any agent or servant shall 
impair or demand such liability.” 


But no valuable decisions were rendered under it and the 
act was repealed in 1880, thus remitting a suitor to this com- 
mon law rights. 

Wyoming and Montana have enacted the following laws, 
but they have never been construed by the Courts: 


ComPILED Laws OF WYOMING (1876), 512, CHAp, 97 (APPROVED 1869). 


‘¢ Any person in the employment of any railroad company in this territory 
who may be killed by any locomotive, car, or other rolling stock, whether in 
performance of his duty or otherwise, his widow or heirs may have the same 
right of action for damages against such company as if said person so killed 


* 47 Iowa, 375, 383. t 37 Iowa, 372. t 43 Iowa, 406. 


ak) 3 oe 


were not in the employ of said company; any agreement he may have made, 
whether verbal or written, to hold such company harmless or free from an 
action for damages in the event of such killing shall be null and void, and shall 
not be admitted as testimony in behalf of said company in any action for dam- 
ages which may be brought against them; and any person in the employ of said 
company who may be injured by any locomotive, car, or other rolling stock of 
Said company or by other property of said company, shall have his action for 
damages against said company the same as if he were not in the employ of said 
company, and no agreement to the contrary shall be admitted as testimony in 
behalf of said company.” 


Laws OF REVISED STATUTES OF MonTANA (1879), 471, § 318. 


‘«That in every case the liability of the [railroad] corporation to a servant 
or employee acting under the orders of his superior shall be the same, in case 
of injury sustained by default or wrongful act of his superior, or to an employee 
not appointed or controlled by him, as if such servant or employee were a pas- 
senger.” 


From the year 1877 until 1880 the whole question of th 
state of the law was thoroughly agitated in England, while the 
passage of the Employers’ Liability Act was pending in Parlia- 
ment. The first State to copy the provisions of the English act 
was Alabama, and she copied it nearly verbatim. 


Civiz CopE, 1887, 1. § 259. 


‘*When a personal injury is received by a-servant or employee in the 
Service or business of the master or employer, the master or employer is liable 
to answer in damages to such servant or employee, as if he were a stranger, 
and not engaged in such service or employment, in the cases following :— 

1. When the injury is caused by reason of any defect in the condition of 
the ways, works, machinery, or plant connected with or used in the business of 
the master or employer. 

2. When the injury is caused by reason of the negligence of any person in 
the service or employment of the master or employer who has any superintend- 
ence intrusted to him, whilst in the exercise of such superintendence. 

3. When such injury is caused by reason of the negligence of any person 
in the service or employment of the master or employer, to whose orders or 
directions the servant or employee, at the time of the injury, was bound to 
conform, and did conform, if such injuries resulted from his having so con- 
formed, 

4, When such injury is caused by reason of the act or omission of any 
person in the service or employment of the master or employer, done or made 
in obedience to the rules and regulations or by-laws of the master or employer, 
or in obedience to particular instructions given by any person delegated with 
the authority of the master or employer in that behalf. 

5. When such injury is caused by reason of the negligence of any person 
in the service or employment of the master or employer who has the charge or 
control of any signal, points, locomotive, engine, switch, car, or train upon a 
railway, or of any part of the track of a railway. 


a, (oe 


‘‘But the master or employer is not liable under this section, if the servant 
or employee knew of the defect or negligence causing the injury, and failed in 
a reasonable time to give information thereof to the master or employer, or to 
some person superior to himself engaged in the service or employment of the 
master or employer, unless he was aware that the master or employer or such 
superior already knew of such defect or negligence; nor is the master or em- 
ployer liable under subdivision one, unless the defect therein mentioned arose 
from, or had not been discovered. or remedied owing to, the negligence 
of the master or employer, or of some person in the service of the master or 
employer, and intrusted by him with the duty of seeing that the ways, works, 
machinery or plant were in proper condition.” 


In 1887, Massachusetts, the State to furnish the earliest 
leading case settling the common law rule in this country, 
after several years of discussion and agitation, adopted the 
English act changing the doctrine of liability. 


Act oF May 14TH, 1887, ENTITLED ‘‘ AN AcT TO EXTEND AND REGULATE THE 
LIABILITY OF EMPLOYERS TO MAKE COMPENSATION FOR PERSONAL 
INJURIES SUFFERED BY EMPLOYEES IN THEIR SERVICE.” 


§ 1—‘‘ When after the passage of this act, personal injury is caused to an 
employee, who is himself in the exercise of due care and diligence at the time— 

(1) By reason of any defect in the condition of the ways, works, or machi- 
nery connected with or used in the business of the employer, which arose from 
or had not been discovered or remedied owing to the negligence of the em- 
ployer or of any person in the service of the employer, and entrusted by him 
with the duty of seeing that the ways, works, or machinery were in proper con- 
dition; or 

(2) By reason of the negligence of any person in the service of the 
employer, entrusted with and exercising superintendence, whose sole or princi- 
pal duty is that of superintendence. 

(3) By reason of the negligence of any person in the service of the em- 
ployer who has the charge or control of any signal, switch, locomotive engine 
or train upon a railroad, the employee, or in case the injury results in death, 
the legal representatives of such employee, shall have the same right of compen- 
sation and remedies against the employer, as if the employee had not been an 
employee of, nor in the service of the employer, nor engaged in its work.” 

§ 2—‘‘ Where an employee is instantly killed or dies without conscious suffer- 
ing, as the result of the negligence of the employer, or of the negligence of any 
person for whose negligence the employer is liable under the provisions of this 
act, the widow of the deceased, or in case there is no widow, the next of kin, 
provided that such next of kin were at the time of the death of such employee 
dependent upon the wages of such employee for support, may maintain an 
action for damages therefor, and may recover in the same manner, and to the 
same extent, as if the death of the deceased had not been instantaneous, or as 
if the deceased had consciously suffered.” 

§ 3—‘*The amount of compensation receivable under this act in cases of 
personal injury shall not exceed the sum of four thousand dollars. In case of 


ent, ome 


death, compensation in lieu thereof may be recovered in not less than five hun- 
dred and not more than five thousand dollars to be assessed with reference to the 
degree of culpability of the employer herein, or the person for whose negligence 
he is made liable: and no action for the recovery of compensation for injury or 
death under this act shall be maintained, unless notice of the time, place and 
cause of the injury is given to the employer within thirty days, and the action 
is commenced within one year from the occurrence of the accident causing the 
injury or death. But no notice given under the provisions of this section shall 
be deemed to be invalid or insufficient solely by reason of any inaccuracy in 
stating the time, place or cause of the injury; provided it is shown that there 
was no intention to mislead, and that the party entitled to notice was not in 
fact misled thereby.” 

§ 4— ‘Whenever an employer enters into a contract, either written or verbal, 
with an independent contractor to do part of such employee’s work, or when- 
ever such contractor enters into a contract with a sub-contractor to do all or 
any part of the work comprised in such contractor’s contract with the employee, 
such contract or sub-contract shall not bar the liability of the employer for 
injuries to the employees of such contractor or sub-contractor, by reason of any 
defect in the condition of the ways, works, machinery or plant, if they are the 
property of the employer, or furnished by him, and if such defect arose or had 
not been discovered or remedied, through the negligence of the employer or of 
some person entrusted by him with the duty of seeing that they were in proper 

condition.” 
§ 5.—*‘ An employee or his legal representative shall not be entitled under 
this act to any right of compensation or remedy against his employer, in any 
case where such employer knew of the defect which caused the injury, and fail- 
ed within a reasonable time to give, or cause to be given, information thereof 
to the employer, or to some person superior to himself in the service of the em- 
ployer, who had entrusted to him some general superintendence.” 

§ 6.—‘‘Any employer who shall have contributed to an insurance fund, 
created and maintained for the mutual purpose of indemnifying an employee 
for personal injuries for which compensation may be recovered under this act, 
or to any relief society formed under chapter two hundred and forty-four of the 
acts of the year 1882, as authorized by chapter one hundred and twenty-five, of 
the acts of the year 1886, may prove, in mitigation of the damages recoverable 
by an employee under this act, such proportion of the pecuniary benefit as 
has been received by such employee from any such fund or society, on account 
of such contribution of said employer, as the contribution of such employer to 
such fund bears to the whole contribution thereto.” 

§ 7.—‘‘ This act shall not apply to injuries caused to domestic servants, or 
farm laborers, by other fellow employees, and shall take effect on the first day 
of September, 1887.” 


The above law has not been in operation sufficiently long 
to furnish facts for a criticism of any value. We are inclined 
to think that the act is a wise and conservative measure for 
remedying the confessed evils and deficiencies of the common 


deals tk, 


law doctrine. It allows recovery, principally, where the in- 
jury was caused by one who is superior in position and 
authority to the injured servant, and is in fact, if not in law, 
exercising some of the functions of the master, and therefore 
his representative. 

That it shall not oppress the employers too heavily, the 
amount of recoverable damages is limited, a thing, perhaps 
the result of compromise or policy, but we fail to see, on 
abstract principles, why a man should not be allowed to 
recover all the damages he can prove. Further, the act en- 
courages masters, in contributing to voluntary insurance funds 
for the benefit of their injured workmen, a thing that cannot 
be too highly commended. 

Massachusetts, and in fact nearly every state that has 
changed the law on the same lines, has lastly enacted the 
following law : 


PuBLIc STATUTES, CHAP. 74, PaGE 1422. 

§ 3.—‘* No person or corporation shall, by a special contract with personsin 
his or its employ, exempt himself or itself from any liability which he or it 
might otherwise be under to such persons for injuries suffered by them in their 
employment, and which result from the employer’s own negligence or from the 
negligence of other persons in his or its employ.” 

Although such an act is an infringement of the right of 
freedom of contract, and therefore to be deplored, it seems a 
necessary complement of the previous act, if that is to be 
anything more than a dead letter encumbering the statute 
book. , 

Such has been the nature of the legislation in this country 
upon the topics under discussion. 

Space would not permit the giving of more than a few 
samples with meager comments, but enough, it is trusted, has 
been seen, to appreciate the advantages of particular regula- 
tions of dangerous industries, over any broad and general 
subversion of the elemental principles of the common law. 
It is always a heroic measure to disturb and unsettle the state 
of the law by attacking its foundation principles, and the 
courts generally manage to render nugatory, by decision, any 
such attempts, | 


his al 


What more shall be done, in the premises, must depend 
largely upon the force and direction of public opinion. Let 
us hope that no radical spirit shall be manifested, since the 
law is in a transition stage, but that our solons shall proceed 
by the conservative method of regulating each particular 
dangerous industry by special legislation, rather than by 
passing a general sweeping act, applicable to all cases, but too 
broad in its measures to be successfully applied to particular 
instances. 

Changed in this manner we feel confident that our law 
shall be both more just in its theory and more successful in 
fulfilling its purpose, of preventing accidents, rather than 
giving a right of action for injuries, than the systems of 
European States, next to be considered. 


CHAPTER IY. 
THe Laws IN EvROPEAN STATES. 


At the dawn of legal history we find the sentiment preva- 
lent among all peoples, that their particular laws and traditions 
are the especial property of the tribe or clan. Members of 
other societies had no protection by said laws, and conse- 
quently no interest in them. This habit of thinking was due 
to the evolution of the tribe or clan from the patriarchal 
family, and of the tribe laws from the family customs and 
traditions. All governmental organization was in its nature 
patriarchal, and all rules of civil society resembled family 
customs. 

But the civilized nations of the world have been constantly 
drawing nearer to each other. Ties of commercial interest, if 
not of consanguinity and esteem, render intercourse and a 
knowledge of each others customs and ideas necessary. Then, 
too, jurisprudence is becoming more to be considered as a 
branch of philosophical science and not merely as an art. 
Largely owing to these two facts, comparative jurisprudence 
is assuming such a conspicuous position, that scarcely any 
important reform in legislation is taken without consulting the 


vera 


legal experience of the world. In cases of no mere local 
interest and concern, but where great social questions and 
abstract rights are concerned, the propriety of seeking the 
results of this experience must be at once apparent. 

It is extremely difficult to obtain an accurate knowledge of 
the laws, and especially of the common law, of foreign 
countries regulating the respective duties of employer and 
employed, owing to the scarcity of foreign treatises and 
statute books in this country. It is due to this fact that I 
have been forced to have recourse to secondary sources of 
information, and to make the observations on this head of the 
subject brief and more guarded than could have been wished. 

In England, then, the common law regarding the questions 
under discussion is practically the same as here, and conse- 
quently needs no further discussion. In this case, as we have 
seen ante, this is not due to the fact that we have inherited the 
English law, for the rules grew up simultaneously in both 
countries, but rather to the fact that the same legal instincts 
were innate in the judicial minds of both lands. 

In England there exist many statutes minutely regulating 
particular dangerous industries. These have been passed from 
time to time to rectify the defects that experience has shown 
to be fruitful causes of accident; and consolidated and 
amended make an effective code of factory laws. These acts 
are too numerous and voluminous to be given here in extenso, 
and as most of the provisions can be found in one or the other 
of the states of this Union, we must be content to refer the 
interested to the acts themselves for further information. 

In the year 1877 a bill was introduced in the House of 
Commons, that after years of discussion and amendment cul- 
minated in the law known as The Employers Liability Act of 
1880, given below. 

An AcT to extend and regulate the liability of employers to make compensation for 
personal injuries suffered by workmen in their service. 
Be it enacted by the Queen’s most Excellent Majesty, etc. 

§ I.—Where, after the commencement of this Act, personal injury is caused t 

a workman,— ; 


(1.) By reason of any defect in the condition of ways, works, machinery or 
plant, connected with or used in the business of the employer ; or 


ae: ee 


(2.) By reason of the negligence of any person in the service of the employer, 
who has any superintendence entrusted to him, while in the exercise of such super- 
intendence ; or 

(3.) By reason of the negligence of any person in the service of the employer, 
to whose orders or directions the workman, at the time of the injury, was bound to 
conform, and did conform, where such injury resulted from his having so conformed; 
or 

(4.) By reason of the act or omission of any person in the service of the em- 
ployer, done or made in obedience to the rules or by-laws of the employer, or in 
obedience tu particular instructions given by any person delegated with the authority 
of the employer in that behalf; or 

(5.) By reason of the negligence of any person in the service of the employer, 
who has the charge or control of any signal, points, locomotive engine, or train upon 
a railway,— 

The workman, or in case the injury results in death, the legal personal repre- 
sentatives of the workman, and any persons entitled in case of death, shall have the 
same right of compensation and remedies against the employer as if the workman 
had not been a workman of nor in the service of the employer, nor engaged in his 
work. 

§ I.—-A workman shall not be entitled, under this Act, to any right of compen- 
sation or remedy against the employer in any of the following cases (that is to say):— 

(1.) Under sub-section 1 of section I, unless the defect, therein mentioned, 
arose from, or had not been discovered or remedied, owing to the negligence of the 
employer, or of some person in the service of the employer, and intrusted by him 
with the duty of seeing that the ways, works, machinery or plant were in proper 
condition. 

(2.) Under sub-section 4 of section I, unless the injury resulted from some im- 
propriety or defect in the rules, by-laws, or instructions therein mentioned ; provided 
that where a rule or by-law has been approved or has been accepted as a proper rule 
or by-law by one of Her Majesty’s Principal Secretaries of State, or by the Board of 
Trade, or any other department of the Government, under or by virtue of any Act 
of Parliament, it shall not be deemed, for the purpose of this Act, to be an improper 
or defective rule or by-law. 

(3.) In any case where the workman knew of the defect or negligence which 
caused his injury, and failed, within a reasonable time, to give, or cause to be given, 
information thereof to the employer, or some person superior to himself, unless he 
Was aware that the employer or such superior already knew of the said defect or 
negligence. 

§ III.—The amount of compensation recoverable under this Act shall not exceed 
such sum as may be found to be equivalent to the estimated earnings, during the 
three years preceding the injury, of a person in the same grade employed during 
those years in the like employment, and in the district in which the workman 
is employed at the time of the injury. 

§ IV.—An action for the recovery, under this Act, of compensation for an injury 
shall not be maintainable unless notice that injury has been sustained is given within 
six weeks, and the action is commenced within six months from the occurrence of the 
accident causing the injury, or, in case of death, within twelve months from the time 


—80— ; 


of death; provided always, that in case of death the want of such notice shall be no 
bar to the maintenance of such action, if the judge shall be of opinion that there was 
reasonable excuse for such want of notice. 

§ V.—There shall be deducted from any compensation awarded to any workman, 
or representatives ofa workman, or persons claiming by, under or through a workman 
in respect of any cause of action arising under this Act, any penalty or part ofa penalty 
which may have been paid in pursuance ofany other Act of Parliament to such work- 
man, representatives, or personsin respect of the same cause of action ; and where an 
action has been brought under this Act by any workman, or the representatives of any 
workman, or any persons claiming by, under or through such workman, for compensa- 
tion in respect ofany cause of action arising under this Act, and payment hasnot pre- 
viously been made of any penalty or part of a penalty, under any other Act of Par- 
liament in respect of the same cause of action, such workman, representatives or 
persons shall not be entitled thereafter to receive any penalty or part of a penalty 
under any other Act of Parliament, in respect of the same cause of action. 

The remaining sections relate to definitions and procedure. 
This act has been the result of numerous fatal accidents, and the 
continued agitation of the workingmen’s societies, which final- 
ly aroused a public sentiment sufficiently strong to amend the 
former law. But this act, although quite comprehensive inits 
scope, virtually doing away with the common law doctrine of 
co-service, has not met with universal approval, even among 
the classes sought to be benefited by it. Numerous proposi- 
tions for amendment have been considered in Parliament, and 
a parliamentary committee has taken hundreds of pages 
of testimony upon the subject of the practical workings of the 
measure,* and the lawyers, both in England and America, have 
criticised the act.t In the month of March, 1886, Lord Rose- 
berry, the head of the Foreign Office, addressed a circular to the 
representatives of Her Britannic Majesty in the principal capi- 
tals of Europe, requesting information on the following points 
for the guidance of parliament in amending the Employer’s 
Liability Act: 

ForEIGN Orricr, March 30, 1886. 
My Lord ; 
SIR : 


Questions relating to the liability of employers to com- 
pensate workmen injured in their service, are likely again 


* See Parliamentary Papers, Commercial Reports for 1886. 
+ See railroad and corporation journals for 1888. 


aac = | fase 


to come before parliament, and I have therefore to request a 
report of the state of the law on this subject in 

I am anxious that the report should give a full account of the 
provisions of the existing law, and should state whether or not 
it depends upon special legislation ; if so, to what extent, and 
since what time that legislation has been in force, and should 
notice any intended or probable alterations. 

The following are points of particular importance :— 

1. Is the employer limited to any particular classes of em- 
ployment, or classes of workmen ; and if so, to what classes? 

2. In what cases does the fact that an injury arose from the 
act of a fellow workman relieve the employer from liability ? 

3. Does it make any difference if the fellow workman was 
in authority over the workman injured, or in a position of 
authority in the employer’s business generally ? 

4, Is there any difference between the employer’s responsi- 
bility for the condition of the machinery, plant and permanent 
appliances of the work, and for specific acts or defaults of 
workmen ? 

5. Is the workman injured required, as a condition of being 
entitled to compensation from the employer, to give any special 
notice of the facts, or of his claim ? 

6. Are employers and workmen permitted to contract them- 
selves out of the whole or any part of the provisions of the law 
on the subject? 

7. Generally is the right to compensation treated as arising 
out of the contract between the employer and the workman, or 
as independent of it? 

8. How far does a system of insurance by workmen them- 
selves against accidents prevail, compulsory or otherwise? 

9. In what proportion do employers and employed respect- 
ively contribute, voluntarily or otherwise, to insurance funds? 

10. To what extent does the employer reduce his lability 
by contributing to the insurance funds? 

11. Is the liability of shipowners for injuries suffered by 
sailors in their employment governed by the general law of the 
responsibility of employers? 





cy «Yo 


12. If special legal provisions exist in the case of shipping, 
what are those provisions ? 

13. Is the shipowner’s liability limited to (French, &c.) 
sailors, or does it extend to those of other nationalities in his 
employment? 

I am, &c., 
[S’gd.] RosEBERRY. 


It is from the responses to these questions that the state 
of the continental law is most readily and perhaps most reliably 
to be obtained. 

In France, although during the past few years numerous 
bills for special laws have been introduced into the Chamber of 
Deputies and Senate, none of them have succeeded in becoming 
law. All questions, therefore, relating to accidents are still 
regulated by the Code Napoleon, which occupies the same 
relative position as the common law does in this country. 

The articles of that compilation bearing on the points at 
issue are: 


ArT. 1382.—Any action whatever ofa man which causes an injury to another 
obliges the person by whose fault the injury has occurred to repair it. 

ART. 1383.—Every body is responsible for the injury he has caused, not only by 
his action, but also by his negligence and imprudence, 

ART. 1384.—A man is responsible, not only for the injury he causes by his own 
action but also for that which is caused by the action of persons for whom he is 
answerable or of things in his charge. 

The father, or the mother, after the decease of the husband, are responsible for 
the injury caused by their children, who live with them, being minors. 

Masters and employers for the injury caused by their servants and overseers in 
the performance of the functions in which they have employed them. 

Tutors and artisans for the injury caused by their pupils and apprentices during 
the time they are under their supervision. 

This responsibility is incurred unless the father, mother, tutors, or artisans prove 
that they could not prevent the action which gives rise to the responsibility, 

Art. 1885.—The owner of an animal, or the person using it, is responsible, so 
Jong as it is being used by him, for the injury which the animal has caused, whether 
the animal was in his charge or whether it had strayed or escaped. 

ArT. 1386.—The owner of a building is responsible for the damage caused by its 
fall, when such fall has taken place in consequence of defective maintenance or faulty 
construction. 


As will be seen the principles are very general in their 
terms and include all cases of responsibility without exception; 


the law has applied them to all circumstances in which a 
responsibility exists. 

M. Treitt, to whom was entrusted the task of replying to 
the Foreign Office Circular sent to the French embassy, says 
in his report, a translation of portions of which we make 
use of : 

“Thousands of decisions have been pronounced on this 
matter, and I am not aware that the justice thus administered, 
leaving, as it does, the facts to be estimated by the conscience 
and intelligence of the judges, has ever given rise to well 
founded criticism. If the judges could be suspected of parti- 
ality or indulgence, it would be in favor of the employed and 
not of the employers. 

This procedure has only one drawback, and that a serious 
one; itis that the victims of accidents, or their widows and 
children, are obliged to wait a very long time before they ob- 
tain justice; owing to the enormous number of demands for 
compensation, the tribunals are absolutely unable to pro- 
nounce their decisions till a long period has elapsed; during 
this period the victims clearly suffer wrong, for it is very cer- 
tain that tardy justice often becomes injustice. 

Itis on this account that, in considering the innovations 
proposed to be introduced into the law to regulate the re- 
lations of employers and employed, many French jurists 
believe there is nothing to be changed in the established law, 
which operates equitably, and that all that is wanted is to 
modify the procedure so that the judgment may be pronounced 
without delay, and may have a privileged position on the general 
list of business. This would be only a matter of internal 
arrangements, which could be easily brought up to the mark 
by the creation of new courts. 

It is as well to add that victims of accidents or their repre- 
sentatives, who have not the means of going to law, can obtain 
legal assistance on proof of their indigence (Law of 22nd Janu- 
ary, 1851); and in these cases they are provided with counsel 
gratis, and all the steps of legal procedure are taken for them 
free of charge. 

Such is ‘he state of things in France to-day.” 


RAY 


France, it may thus be seen, allows a recovery in almost 
every case where the accident was not caused directly by the 
injured person’s own negligence, or by the “act of God,” as 
the English law piously terms vis major. For many reasons 
such a rule of law must as inevitably work hardship and in- 
justice to the employer as the absence of all safeguards and rem- 
edies would to the employed. M. Treitt unconsciously gives a 
very good criticism of the law he seeks tojustify. Hesays “If 
the judges could be suspected of partiality or indulgence it 
would be in favor of the employed and not of the employers.” 
The only serious fault he finds in the French law is that, owing 
to the “enormous” number of demands for compensation 
brought into them, the courts are unable to dispatch their busi- 
ness with sufficient promptness. And he suggests, as a means 
of remedying this defect, the creation of a sufficient number of 
new courts. Anideal system of justice is one in which no “ par- 
tiality or indulgence” finds place, but where the blinded goddess 
metes out justice with an even and unimpassioned hand. But 
as liberal as is the law of France, it fails to give satisfaction to 
the workingmen. Numerous propositions of law have recently 
been introduced into the Chamber of Deputies and into the 
Senate, some of which are extremely radical and unsound. 

The state of affairs in France tends to support the assertion 
I have made above that the sort of legislation needed is that 
which will prevent accidents and not that which allows damages 
for injuries incurred. ) 

The number of measures introduced with a view of further 
extending the employer’s liability, would lead one to think that 
something more than the creation of more courts was sought. 
M. Treitt’s report will best give the history of the proposed 
legislation, 

In 1881 the French Legislature, like what was happening 
in neighboring countries, such as Switzerland, was called upon 
to examine several Bills on the subject of responsibility for 
accidents befalling workmen. 

There were nine of these Bills, besides a dozen amendments ; 
all these Bills emanated from the initiative of members of 
Parliament. 


O56 


Parliamentary document, No. 2634, is the report made 
to the Chamber of Deputies, and submitted on the 16th of 
February, 1884, concerning all the private Bills introduced 
before that date in regard to the matter, as also the amend- 
ments to which those Bills had given rise. It contains all the 
texts as well as all the discussions which led to their accept- 
ance or rejection by the committee. At page 79 of the report 
is to be found the draft of a bill in thirteen articles. 

This Bill came on for discussion in the Chamber of Depu- 
ties in the sessions of the 20th, 2lst and 23rd of October, 
1884. | 

The debates were eager and animated ; every body declared 
himself the workman’s friend ; but the principle of the absolute 
responsibility of masters or employers was contested with 
energy. It appeared exorbitant to upset the axiom of the 
claimant having to prove his contention (actorz incomlit pro- 
batis), and that the employer should be tpso facto responsible 
for all accidents whatever their nature, and also that it should 
lie with him to produce the negative proof showing that he is 
not the cause of the accident. 

In a word, the Assembly seems to have been unanimous in 
favor of obliging employers to take out policies for their work- 
men, an excellent principle in itself, but one the application of 
which is full of difficulties. 

Tn its last session the Chamber decided to proceed to a 
second reading. 

The government had met reverses on the subject of the 
articles adopted ; after the session of the Chambers, it found 
a strong extra-parliamentary Committee charged with prepar- 
ing a Bill on this matter, with reference to which the debates 
had been very much confused. 

On the 17th of February, 1885, this Committee made its 
report to the Minister of Commerce, including a Bill with 
twelve articles. | 

On the 24th of March, 1885, the Minister of Commerce 
introduced a Bill, in the name of the Government, on the 
subject of the responsibility for accidents to workmen in the 
performance of their work, 


a1 0p 


The Government Bill was identical with the text of the 
articles voted by the extra-parliamentary Committee. 

The Bill was referred to the Committee on Accidents to 
Workmen. The Legislature which had taken up the law con- 
cerning accidents to workmen in the performance of their 
work, had terminated in July, 1885. It was, therefore, unable 
to finish the work it had begun. 

The new Legislature entered upon its fonoHoen in 
November, 1885. Conformably with parliamentary usage, 
it was necessary to take up again, ab ovo, the different Bills 
which were still under discussion during the foregoing Leg- 
islature. 

As soon as the 5th of December, several Deputies brought 
in a Bill concerning accidents to workmen; this Bill contained 
absolutely nothing beyond the self-same articles which the 
preceding Chamber had voted on the first reading on the 23d 
of October, 1884, and which were to have been the subject of 
a second reading. 

On the 29th of December, 1885, M. Rouvier resumed as 
Deputy the Bill which he had presented in his Ministerial 
capacity on the 24th of March, 1885. 

On the second of February, 1886, the Minister of the In- 
terior presented to the Chamber of Deputies, in the name of 
the Government, a Bill proposing, like M. Rouvier, the adop- 
tion of the text of the extra-parliamentary committee. 

On the same day, the 2nd of February, 1886, several leaders 
of the Conservative Party, submitted another Bill on the sub- 
ject of accidents to workmen. 

This bill tends toward the same end, but by different 
means; it rejects the intervention of the State and leaves the 
protection of workmen to the combined initiative of employers 
and employed. 

The plan deserves to be examined side by side with the 
proposals previously made, and its provisions will perhaps 
admit of being profitably adapted to the old bills. 

All things connected with this law, respecting workmen, 
took place in the Chamber of Deputies. The Senate had 
remained a stranger to it till the 26th of January, 1886, on 


fess as 


which day a bill was submitted to it, emanating from the 
initiative of one of its members, M. Blavier. 

This document contains useful ideas, and deserves to be 
considered, in as much as it is the work of an eminent manu- 
facturer, and contains much that has been written on the 
subject. 

It is doubtless true that the Senate will not be for some 
time called upon to pass a law with reference to accidents to 
workmen, and the insurance, by means of which they are to 
receive compensation; but it seems right that one of the 
greatest bodies of the State should not remain a stranger to 
the labor question. This explains M. Blavier’s bill. 

Such is the history of the laborious proposals made in 
regard to accidents to workmen, and the responsibility which 
they occasion. None of these provisions, however, have ever 
attained the dignity of law. Hitherto the subject has been 
regulated by the common law, and the innovations proposed - 
are principally concerned : 

1. In imposing upon the employer the obligation to 
indemnify his workmen in case of accidents, even if the em- 
ployer should have nothing whatever to do with the causes of 
the accident. This has been called “the forced contribution 
towards compensating professional risks.” 

2. In obliging employers to have their workmen insured ; 
these latter, it is urged, should bear at least a third of the 
cost of the insurance. 1 

3. In determining beforehand the scale of compensation to 
be paid to the workmen or their representatives. 

4. Finally, in avoiding all delays in the payment of the 
indemnity. 

In reply to the categorical questions of the circular M. 
Treitt gives the following answers, an admirable summary of 
the law : 

first Question.—The employer is responsible with reference 
to all his workmen indiscriminately; there are no classes 
among the workmen. 

Second (Juestion.—The responsibility of the employer is 
never absolutely relieved. If the injury arises from the act of 


— 9898 


a fellow-workman, it lies with the judge to estimate the facts 
absolutely, and to assign to each person his share in *the 
responsibility. 

Third (Question—It makes no difference if the injured 
workman was under the authority of a fellow-workman, or in 
any position of superior authority in the employer’s business 
generally. 

Fourth Question—The responsibility of the employer is the 
same, whether the machinery, plant, and permanent appli- 
ances, or whether the acts of the workmen, or even their 
defaults, are concerned. The question of responsibility is 
always settled by the judge, who estimates the fact absolutely. 

Fifth Question.—The workman injured is not required, as a 
condition of obtaining compensation, to give any special 
notice. If the employer makes no offers to the workman, or if 
the latter does not accept his offers, the employer is sum- 
moned directly before the judge, who decides, finally, if the 
sum in question does not exceed 1,500 frances, while the parties 
have a right to appeal if that sum is exceeded. This is in 
accordance with the common law. 

Sixth Question—Employers and employed are allowed to 
make such contracts as they please, even outside the pro- 
visions of the law; but according to the constant and well 
established interpretation of the law, the judges have the 
right to annul such contracts if they are too prejudical to one’ 
of the contracting parties; they are then leonine contracts, 
and are held to have been signed under irresistible con- 
straint, such as main force or the necessity of obtaining 
work. 

In the new proposals there is an article forbidding work- 
men and employers to make contracts contrary to the provis- 
ions of the proposed law, under pain of such contracts being 
held null and void. 

Seventh Question.—The right to compensation may be re- 
corded in a contract (but this kind of contract is very rare), for 
the right to reparation exists in virtue of the law; I have 
given, at the head of this report, the text of Article 1882 of the 
Civil Code, which compels the author of a voluntary or inyol- 


ay, ee 


untary action, which has occasioned injury to another, to 
repair that injury. 

Highth Question.—lt is to be regretted that the system of 
insurance by workmen themselves does not much prevail. 

In France insurance has not yet become general as in some 
other countries. 

If workmen insure themselves against accidents, it is 
generally through the intermediary care and assistance of the 
employers; in this respect the improvidence of workmen is 
proverbial in France. 

Ninth (uestion.—There is nothing fixed and determined as 
to the proportion in which employers and employed respect- 
ively contribute to the insurance fund. The proportion gener- 
ally varies from 1 to 5 per cent., according to the more or less 
numerous chances of accidents by which the employed are 
threatened. 

Every year the employers set aside a certain sum from 
their income, under general expenses, in order to subvention 
the workmen’s insurance fund. There are no fixed rules in 
this respect; the sums set aside from their wages by the 
workmen vary in the different establishments, as in the case 
of the sum contributed by the employers. 

Tenth (Juestion.—The employer cannot reduce his respon- 
sibility to a fixed sum, for, in default of payment from the 
insurance fund of the compensation, due or assigned under the 
contract, the employer may be sentenced to pay the compen- 
sation if he is covered by the provisions of Article 1882 of the 
Civil Code. 

Eleventh Question —The responsibility of ship-owners, in 
case ofinjury to the sailors employed by them,is the same as that 
of employers in general; they are subject to the common law. 

Twelfth Question.—There are no special provisions in the 
case of shipping, as regards the responsibility of employers. 

Thirteenth Question.—The responsibility of ship-owners 
exists indiscriminately as regards French sailors and sailors 
of foreign nationality. 

In Germany there exist acts, resembling the English factory 
laws, that minutely and effectively provide for the safety of 


aay 


workmen employed in factories and workshops. They also 
have a system of factory inspectors, “ fabrik inspectoren ” and 
‘“‘fabrik commissaren,” but the characteristic of the German 
system, which has been copied in other countries recently, is 
that a carefully elaborated system prevails whereby employers 
are compelled by State intervention to insure their workmen 
and their families against all accidents, even those caused by 
the injured person’s own negligence, as well as against sickness 
contracted in the course and by reason of their employ- 
ment. 

The first law passed on the subject was the ‘“‘ Haftpflicht- 
gesetz’” (law relating to the liability of employers to pay com- 
pensation to persons injured in their service or in their trade), 
promulgated on the 7th:of June, 1871. This law was passed, 
not only for the benefit of workmen, but for the benefit of all 
persons injured by the working of railways, mines, quarries, 
and manufactories. 

By the “ Haftpflichtgesetz” any person injured on a rail- 
way, or in the railway service, was entitled to a compensation 
from the railway director, unless the said railway director 
could prove satisfactorily that the accident had been caused 
by circumstances over which it, as an employer of labor, could 
have no control (“ Hdhere Gewalt”) or by the fault of 
the injured person himself; also by this law any person 
injured by the working of a mine, quarry, or manufactory, was 
entitled to compensation from the owner of such mine, quarry, 
etc., provided the person injured could prove that the injury 
had been caused by the negligence of the owner, or of a func- 
tionary in a position of authority in the owner’s service. 

The above law, “ Haftpflichtgesetz,” although not formally 
abrogated, has practically been superseded, as far as work- 
men are concerned, by the “ Unfallversicherungsgesetz,” of the 
6th of July, 1884. 

This law, which has been in force since the 1st of October, 
1885, imposes on the employer the obligation— 

a. To compensate workmen injured in his service. 

b. '[o pay a pension to widows of workmen killed in the 

Service. 


A Cou: 


ce. To maintain the children of workmen killed in the service 

till they have reached a specified age. 

The effect of the law has been that employers, for their own 
protection and in order to spread their risks over as large an 
area as possible, have been grouped by law into trade associ- 
ations, termed ‘“ Berufsgenossenschaften.” 

The statutes of each such “ Berufsgenossenschaft’” must 
receive the sanction of the Government. 

Each branch of trade and industry in which the risks are 
similar and equal—for instance the iron and steel trade, chemi- 
cal industry, textile industry, sugar or tobacco manufactories, 
etc., etc.—has been formed by law into a “ Berufsgenossen- 
schaft” for each such branch of industry within a certain geo- 
graphical district, for the purpose of compensating workmen 
injured in the service of any employer who belongs to the 
respective district, and belongs, therefore, by law, to the re- 
spective association. | 

Some branches of industry, for instance the chemical 
industry, gas and water companies, etc,, etc., have formed 
‘‘ Berufsgenossenschaft” for the whole of Germany. Some 
other branches, the iron and steel trade, for instance, have 
formed several “ Berufsgenossenschaften,’ each of them for a 
certain geographical district. 

The total number of these “Berufsgenossenschaften” is at 
present 62, each having its own administration. 

By means of this organization, if a workman in the iron 
and steel trade, to take an instance, is injured in the service of 
his employer, those employers who are banded together in the 
“Hisen und Stahl Berufsgenossenschaft” are under legal obli- 
gations to pay the compensation for the injury received, and 
out of the total number of eight “ Berufseenossenschaften” 
formed for this particular trade, those employers are liable who 
form that “ Berufsgenossenschaft”’ in whose distriet the manu- 
factory of the employer concerned is situated. 

The funds for compensating injured workmen, and the cost 
of administration are raised yearly from all the employers 
within the respective districts, in proportion to the wages paid 
by each employer to his workmen within the year. 


The above law (accidents insurance law) was extended by 
the law of the 28th of May, 1885. 

First. To all workmen employed in the post, telegraph and 
railway services. 

Secondly. To the trades carried on by the administration of 
the Army and Navy. 

Thirdly. To inland navigation, the working of dredges, 
ferries, and rafts, to the transport of passengers and forward- 
ing of goods, to the loading, unloading and warehousing of 
goods, to cellarage and the like. 

The principles of the “ Unfallversicherungs-Gesetz”’ (acci- 
dents insurance law) of the 6th of July, 1884, have been ex- 
tended to all agricultural and forest laborers by a law of the 
5th of May, 1886. The day, however, on which this law will 
be put into force is not yet fixed. 

Such are the main principles of the accident insurance law 
of Germany, which are simple enough in themselves, the diffi- 
culty and complexity lying in their application and enforce- 
ment. The time since the act came into force (October, 1885) 
has been too short to enable the employers to know how their 
organization will work, and utterly insufficient to calculate 
what will be the expense either of management or of compen- 
sation. * 

This system is the most radical of all the labor legislation, 
and would seem to be utopian enough to satisfy the desires of 
even the most socialistic German. Such a system could only 
be possible in a country where the relations of employer and 
employed are looked upon as feudal in their character; cer- 
tainly such a system cannot be justified on the theory that 
those relations are created and regulated solely by contract. 
It rests upon an unjust, illogical and antiquated middle aged 
idea, which apparently the progressive Germans have not yet 
discarded. Unless the workman surrenders his free agency, 
and his will to his master, and becomes bound to him in indis- 
soluble feudal ties, unless the employed becomes a serf and the 
employer his baron, it is hard to find a consideration or justifi- 


* Report of Arthur F. G. Leveson—Gower. 


Egger 


cation for the burdens thus cast upon the employer. The 
scheme has not been in operation long enough to be able’ to 
show with all the accuracy of statistics and experience how it 
will work; but it does not require much prophetic inspiration 
to forecast the results. The expense of the premiums will 
undoubtedly be indirectly paid by the workmen themselves. 
Wages will be reduced in the proportion that experience 
teaches to be the probable risk of accidents, and doubtless this 
will offer an excuse for a still larger reduction than is neces- 
sary. The workman will be insured, but at his own expense, 
and the employers by thus shifting the burden cast upon them 
will evade the restraining influences of these laws. 

The following are the answers given by the representative 
at Berlin to the questions in Lord Roseberry’s Commercial Cir- 
cular of the 30th of March, taken in their order, presenting in 
summarized form the present state of the employer's liability 
in the German Empire; 

First.—The liability of employers comprises—AIl workmen 
employed in manufactories, mines, quarries, forges, wharves, 
and in the building trade. 

Secondly.—All workmen employed as masons, carpenters, 
tilers, stone-cutters, chimney-sweeps, or in well-digging and 
pump-making. 

Thirdly.—All workmen employed in a trade in which boil- 
ers or machines driven by elementary power (wind, water, 
steam, gas, hot air, etc.) are used. 

Fourthly.—All persons employed in the industries or trades 
above mentioned who are not workmen, properly so called, but 
functionaries receiving a fixed salary not exceeding 2,000 marks 
per annum. 

All persons included under these four headings are entitled 
to compensation when injured at their work, or, in other words, 
they are insured by law (ipso jure) against accidents suffered at 
their work (Betriebsunfille). 

Only such persons who are employed in offices, as clerks, 
bookkeepers and the like, and who, consequently, have noth- 
ing to do with the practical work, are exempted from this law. 
Officials appointed by the Government (of Germany or 


Oud 


of a German State) or by a public community, who receive a 
fixed salary, and are entitled to a pension from the Govern- 
ment, or from a municipality or other public community, are 
not affected by this law. 

Such officials, as far as they are employed in a trade or 
manufactory (“ Betrieb’”’) affected by the “ accidents insurance 
law” are entitled to a pension from the Government when they 
become unfit for service by an accident suffered in such em- 
ployment. According to the provisions of the ‘‘ Gesetz betref- 
fend die Fursorge fur Beamte und Personen des Soldatenstan- 
des infolge von Betrieb-unfallen,” a law to provide for officials 
and persons in the military service in case of accidents. (15th 
March, 1886.) 

2. The only cases in which the employers would be relieved 
from liability are—jirst, when the injury suffered by the workman 
has noconnection at all with the execution of his duty in his prac- 
tical work, as for instance when a workman is injured by a 
fellow-workman in a quarrel; or, secondly, where a workman is 
convicted of wilfully injuring himself or wilfully causing the 
accident by which he has been injured, and thereby. loses all 
claim for himself or for his family for compensation. 

3. It makes no difference whether a fellow-workman is in 
authority over an injured workman or not; but, should the ac- 
cident have been caused by gross and criminal neglect on the 
part of the employer or of one of his working managers, and 
should this opinion be confirmed by the verdict of a criminal 
court, then the compensation is also paid out of the funds of 
the Trade Association (“ Berufsgenossenschaft”’), but the in- 
criminated employer or manager, as the case may be, is bound 
by law to repay to the Berufsgenossenschaft the amount dis- 
bursed for the workman injured. 

Kven in this case it will be seen that the workman has no 
direct claim against his employer. 

4, As far as responsibility is concerned, there is no differ- 
ence between the liability of employers for the condition of © 
machinery, plant, and permanent appliances of the work, and 
his liability for the specific acts or defaults of his workmen. 

5. The employers are required by law to settle the claims 


PGRN 7 


of an injured workman ex officio, without a special notice being 
given by the workman injured. 

If for any reason the employers have omitted to settle such 
claim, the workman injured is bound to give notice of his claim 
within two years of the time of receiving his injury, otherwise 
he would (with some exceptions) lose his claim. 

6. Employers individually and as Trade Associations 
(‘‘ Berufsgenossenschaften”’) are positively forbidden by law to 
restrict by contract or otherwise the rights and claims given 
by the law to their workmen. 

All stipulations of such a kind would be null and void. 

7. The right to compensation is not treated as arising out 
of the contract between employers and employed, but rather 
as a right of a public character, arising out of a natural obli- 
gation of the employer to compensate workmen injured in his 
service. 

8. The liability of the employer begins from the fourteenth 
week after the accident. For the first thirteen weeks the in. 
jured workman is supported by the funds of the “ Kranken- 
kassen”’ (sick fund), according to the “ Krankenversicherungs- 
' gesetz” (loth of June, 1885), contributions to sick funds are 
compulsory. To these funds the employer contributes one-third, 
the workman {wo-thirds. | 

9. The employed do not contribute in any way or manner, 
either voluntarily or otherwise, to the funds out of which their 
insurance against accidents (“ Unfallversicherung ’’) is paid, and 
therefore in no way to the benefit conferred upon them by the 
law, except in so far as they are bound by law to contribute, 
as above stated, to the “ Krankenkassen” (sick funds) which 
support them for a period of thirteen weeks after the injury 
has been received. 

In the case of a workman dying in consequence of an acci- 
dent, his funeral expenses are paid by that “ Berufsgenossen- 
schaft” of which his employer is a member, his widow and 
children receiving a pension in proportion to the wages he 
was earning when alive. 

10. The employer can in no way reduce his liability, but in 
order to reduce as far as possible the payments which his lia- 


BoeQ RL 


bility must entail upon him, he has associated into “ Berufs- 
genossenschaften”’ (Trade Association) with his fellow-em- 
ployers who carry on trades allied to his own, and in which 
the risks are similar to his own. 

Such an association and its statutes of organization must 
receive the assent of the Government. By means of such as- 
sociations, the number of the employed, subject to the same 
or similar risks, becoming large (each “ Berufsgenossenschaft ” 
containing on an average from thirty thousand to forty thou- 
sand men), the risks are spread over a larger basis, and the 
average of accidents, as compared with the number of the em- 
ployed, is reduced. 

11, 12, 18. As yet there are no legal provisions respecting 
the liability of ship-owners for injuries suffered by sailors in 
their employ. But a law is being prepared at the present 
moment (May 7, 1886) in order to extend the principles of the 
“ Unfallversicherungs Gesetz” to this class. 

For the time being ship-owners have only to provide for 
sailors, in case of illness, for a certain time (3 to 6 months). 

(“‘Seemansordnung, von 27th December, 1872, § 48.”) 

This law applies to sailors of all nationalities in the ship- 
owner's employ. The above laws hold good for the whole 
German Empire, and overrule or abrogate special laws in the 
individual States. 

Such laws may be explained as concessions to the radical 
classes, in the interest of temporary compromise, in a country 
where the lower classes are swayed by socialistic and revolu- 
tionary demagogues, and where the upper classes are imbued 
with impractical, high flown, philosophic ideas. They may be 
go many soporific sops to Cerberus, but they are not effectual 
curative measures. 

In the Austrian Empire, prior to December 28, 1887, the 
liability ofemployers was regulated by the ordinary civil law. It 
is provided thereby simply that the employer is responsible for 
accidents which may occur to them only when he personally 
has been the cause of such accident. The employer is not 
however responsible for the acts or omissions of every person — 
in his employ, whether such person be in authority or not, 


Ok Sg Ne 


unless such employer can be proved to be responsible for the 
wrongful selection, appointment of, or retention in his service 
of the person by whose fault any accident shall have occurred. 

A special law only exists in Austria (Dated March 5th, 
1869), with reference to railways, whereby, in the case of acci- 
dent, the liability of the employer is presumed, and he can only 
relieve himself from such liability on affording proof that the 
accident be caused by vis major, or owing to an act of negli- 
gence on the part of the injured person. 

It will be seen that this corresponds more nearly to the 
state of the law in England and America than do most of the 
Continental systems. In analogy with our system of factory 
inspection, is the law of June 11th, 1883, by which Austria is 
divided into industrial districts at the head of each of which is 
an Industrial Inspector. The functions of these officials are 
to see that proper rules and precautions are had for the pro- 
tection and health of workmen and to report any inadequacy 
in this respect to the local authorities. In some of the dis- 
tricts the insurance expedient is extensively tried. In most of 
these organizations the employers bear the entire burden of 
the premiums, while in others the workmen are also assessed. 
Mr. Paget, in his answer to Lord Roseberry’s Circular, 
says: As to any intended or probable alteration in the hitherto 
existing law on this subject (as to which information is asked 
for) I may state, that a project of law has been submitted to 
the Austrian legislature according to which provincial or local 
Assurance Societies will be compulsively instituted on a sys- 
tem of co-operation between the heads of industrial and 
mining establishments and their workmen, by means of which 
the liability of employers to compensate workmen injured in 
their service will be covered; and although the modifications 
proposed by the opposition in the committee on the subject are 
of some importance there is every probability of it becoming a 
law. 

The essential points are as follows:—All workmen em- 
ployed in factories, foundries, mines, ship building establish- 
ments, a8 well as in manufactories of explosives are, in accord- 
ance with it, insured against any accidents which may arise. 


OR ut 


It is also applicable to workmen employed in the building 
trade, except to such as may be employed in mere reparations. 
A specification is given of the industries (including those 
employed in production of explosive materials) which are 
included in the provisions of the law, and the Ministry 
of the Interior has the faculty of designating such industries 
as must be included in its provisions. 

In case of accidents arising, the compensation to the injured 
persons from the insurance fund commences from the fifth 
week from such accident, and is calculated on the rate of his 
annual wages. Such annual wages are estimated at 300 times 
the daily earnings. 

If a workman received more than 1,200 florins (£100 per 
annum) such excess is not taken into consideration in estimat- 
ing his claim to compensation. 

A workman injured is accorded 60 per cent. of his annual 
rate of wages in case of entire incapacity for labor. 

In case of only partial incapacity for labor, the injured 
workman is accorded an amount not exceeding 50 per cent. 
of his earnings. 

In case of death, the widow of the deceased receives 20 per 
cent. of his earnings. Each legitimate child receives 15 per 
cent.; or if an orphan 20 per cent., each illegitimate child 10 
per cent.; but the total amount accorded to widow and child- 
ren must not exceed 50 per cent. of the annual rate of 
earnings. 

In cases of accidents proved to have been intentionally 
incurred, the relatives receive in cases of mere injury, nothing, 
or in case of decease, one-third less. 

The insurance premiums are borne to the extent of 90 per 
cent. by the employer and 10 per cent. by the workman, and 
the employers are authorized to deduct the amount of such 
premiums from the workmen’s wages. 

Various provisions are inserted in the law to secure theinsur- 
ance societies against irregularities or insufficient precaution 
against danger in the various employments or establishments, 
as well as to insure their proper periodical inspection by the 
provincial industrial inspectors. 


vga 


Full details asto any accident are to be furnished to the 
local authorities within five days of the occurrence, as well as 
full details in regard to the earnings, etc., of the injured person. 

Employers and workmen are not permitted to contract 
themselves out of the whole or any portion of the provisions 
of the law without the assent of the commercial authorities 
(acting in this respect like our poor law officials ; that is the 
English officials). 

In cases of injuries to persons of alien nationality, the 
amount of compensation may be capitalized. 

The assurance societies are precluded by private arrange- 
ment from evading any of the provisions of this law, in which, 
provisions are also inserted imposing various fines and penal- 
ties on heads of industrial establishments who do not act in 
conformity with it. 

Protection is also given to societies which have already 
similarly organized assurance systems in force, and the assist- 
ance and support of the Government authorities is provided 
for. 

It will, therefore, be seen that this proposed law excludes 
State assistance and makes both employers and workmen con- 
tribute to the premiums, according to both a share in the 
administration of these Co-operatives Insurance Societies. In- 
stead of leaving to the employer the free initiative hitherto 
existing, it imposes a legal obligation on him. 

But the Bill in its present form has excited much adverse 
criticism. It is regarded in some quarters as a social dis- 
turbance rather than a social reform, and as calling into 
existence a favored class of workmen. Why it is urged should 
factory workmen alone enjoy its benefits to the exclusion of 
the large class of agricultural laborers and those engaged in 
forestry and small trade? Why should the accident incurred 
through the use of the plane or the scythe be placed on a dif- 
ferent footing to that incurred through the spindle or the 
wheel? A fresh conflict of classes would be created, and the 
acricultural laborer, whose condition is the most wretched one, 
whose daily earnings are the most insufficient, is left, as prc- 
viously, in case of misfortune, at the mercy of the commuual 


—100— 


authorities. Stress is laid on other technical difficulties. 
Owing to the absence, as I have already pointed out, of all 
correct statistics of accidents, the scope and extent of the pro- 
ject is left vague. The very principle of compensation is 
restricted, for the injured person is left for the first few weeks 
at the charge of the sick funds or benevolent societies. 

Other difficulties arise from the diversity of conditions and 
modes of existence in this heterogeneous empire. The separa- 
tion between factory operatives on the one hand, and the agri- 
cultural and forest workmen on the other, is impossible of 
maintenance. In Bohemia, for example, the agricultural 
population is employed according to time and circumstances, 
in a different manner; at one moment in the building trade, or 
in sugar manufactories, at another in the woods or the fields. 
They would, therefore, at one time of the year enjoy the ad- 
vantages of the law, and at another be deprived of them. 

It is probable that before being put into operation, the 
project of law will be submitted to essential modifications.  * 

On the 28th of December, 1887, the Austrian legislature 
passed an act incorporating the essential features of the above 
mentioned Bill. While in the main closely resembling the 
Unfallversicherungs gesetz of the German Empire, after which 
it was modelled, it differs in some important details. 

In place of having the organizations that are to effect the 
insurance established to embrace certain allied industries as in 
Germany, as for instance, ‘Stahl und Hisen Berufsgenossen- 
schaften,” they are instituted according to geographical di- 
visions. Berufsgenossenschaften are to be established, in 
general, in each of the countries of which the Austrian Empire — 
is composed and are to be conducted under governmental 
supervision. The members are not composed solely of em- 
ployers, as in Germany, but of both employers and their work- 
people, and contributions are paid by both. But this is really 
unimportant, since the employees pay only ten per cent. of the 
premiums, and it is not to be supposed they will have much 
influence in the management. 

Danger tariffs are to be established as in Germany for ine 
purpose of assessing contributions according to the probability 


@ 


PAT Oto 


of accident in the several occupations. The indemnity follows 
the German model and includes expenses of care and pensions 
in case of permanent disability: in case of death, pensions 
are granted to the widow, children and those dependent upon 
the deceased for their support. The act applies to workmen 
in factories, iron works, mines, to those engaged in building 
operations and to apprentices, but does not include sailors, 
railroad employees or public servants. 

Italy, like the other European industrial nations, has been 
compelled to give some attention to the subject of employer's 
hability. Projects of laws have been introduced into the legis- 
lature and have received careful consideration and lengthy 
discussion, but as yet, so far as we can learn, no actual reform 
in the law has taken place. The report of the British Minis- 
ter to Italy cantains a full discussion and history of the move- 
ment. Feeling that it is here presented more intelligently and 
ably than elsewhere we make extensive extracts therefrom. 

On the 19th of February, 1883, Projects of Law were laid 
before the Italian Parliament on the subject of the responsi- 
bility of employers of labor toward their work people, and to 
provide a system of National Insurance against losses incurred 
by the latter. 

A short report on this social legislation was forwarded by the 
British Minister to the Foreign Office on May 9th, 1883, in which 
it was mentioned that the law relating to the liability of employ~ 
ers to compensate workmen injured in their service provides, 
engineers and architects of mines, railways, buildings &c., are 
primarily responsible for damages to the persons or health 
of their workmen, occasioned by all kinds of accidents, unless 
caused through the sole negligence of the latter, by pure mis- 
adventure, or by unavoidable circumstances. 

This indemnity to be paid by employers includes medical 
attendance, funeral expenses in case of death, compensation 
for time lost and retribution to the family on the death of their 
supporter. The amount of such compensation will be fixed 
by the judicial authorities, taking account of the circumstances 
of each case, and of the pecuniary resources of the em- 
ployers. 


—102— 


Certain further provisions are made for special contingen- 
cies, which will be found in the translation of the law included 
in this report. 

Employers are bound to give notice of any accident occur- 
ring on their premises, under penalty of a fine of from £4 to 
£10, if such notice be not made within twenty-four hours. 

The necessity of this law has been recognized in conse- 
quence of the considerable number of workmen who are killed 
or wounded every year. What this number amounts to is not 
accurately ascertained, but it has been officially calculated, 
upon the basis of information collected during 1879-81, that 
697 men lost their lives, 7,746 are temporarily incapacitated, 
and 340 are rendered permanently incapable of work, so that 
the sum of the victims of labor reaches a yearly total of 8,783 
persons. 

Attention has been specially called to the matter by numer- 
ous fatal accidents which have occurred in Rome during the 
past four years, caused by defective scaffolding and the use of 
inferior building materials. Indignation meetings and demon- 
strative public funerals have been held in the capital, and 
reports from the provinces have continually urged the Govern- 
ment to complete the legislation upon this subject. 

The condition of the workers in the marble quarries of 
Carara, in the sulphur mines of Sicily, in the powder manu- 
facture and in similar establishments—to which allusion has 
been made in the Reports on the Agricultural Condition of 
Italy drawn up at this Embassy—forms an additional argu- 
ment for the speedy sanction by Parliament of the measure in 
question. Yet the Bill was not passed by the Chamber of 
Deputies until the 15th of June, 1885, and is at the present 
moment (April 10th, 1886), under discussion in the Senate for 
the final approval of that body. 

The following is a translation of the “ Law on the Respon- 
sibility of Employers” together with the alterations proposed 
by the Committee of the Senate, who presented their report on 
the 2nd of April, 1886: 


ArT. 1. The conductors and workers (‘‘workers,’’ z. e., managers, etc.) of 
railways, the owners of urban and rural properties in which new works or repairs 


—103— 


are made, and the contractors or workers of the same, the owners or workers of 
mines, quarries, and foundries, and the engineers and architects who direct the 
works, are always materially responsible (and through them their employers) for 
injury to the bodies or health of their workmen caused by accidents on the railroads, 
by the total or partial destruction of the buildings, by earth slips, excavations, 
explosions, or any similar misfortunes. 

Such liability ceases when it is proved that the accident has occurred solely by 
the negligence of the person injured, by pure misadventure, or by unavoidable 
circumstances, 

ArT. 2. The compensation due from the persons responsible under the pre- 
ceding Article will include: (1) In case of immediate death, or death following 
medical attendance : 

(a.) The expense of the illness and the funeral expenses ; 
(b.) The loss suffered during the illness from incapacity for work ; 
(c.) The loss suffered by the family of the laborer who supported them. 

(Il) Incase of injury to the body or health not followed by death : 

(a.) The expenses of cure. 
(b.) The loss suffered by incapacity to work whether permanent or tem- 
porarily, total or partial. 

ArT. 3.—The judicial authorities will fix the amount of compensation, taking 
into consideration all the circumstances which have occasioned the disaster, and 
according to the principles of common law. With the consent of the interested 
party, or even proprio motu, the judicial authorities may substitute for the payment 
of a capital sum the assignment of a temporary or life income equivalent thereto. 

ArT. 4.—When all the consequences of the accident cannot be determined 
before the court, the judicial authorities in assessing the damages can reserve the 
assignment of a higher amount of compensation in case of death, or of notable 
aggravation in the state of health of the injured person. 

The like reservation may be made in favor of the responsible party for a reduction 
of the compensation, in case after judgment the consequences of the disaster prove to 
be less serious than was expected. 

In both cases, the definite payment must be made at latest within a year from 
the date of the sentence containing the reservation. 

ArT. 5.—The claims for compensation against the responsible parties have the 
same privileges as those mentioned in Arts. 1956 or 4, and 19638 of the Civil Code (viz. 
‘+ The subsistence of the debtor and his family during the last six months of his life, 
and the wages of servants during same period,” which have priority of privilege over 
the claims of other creditors,) and cannot be ceded or sequestrated. 

ArT, 6.— The persons responsible under ART. 1, cease to be liable when they 
have at their own cost insured their workpeople against all kinds of accidents, 
including those arising from their own negligence, from pure misadventure, or from 
unavoidable circumstances ; saving cross-action between persons jointly responsible, 
or against those liable for the payment of the premiums of insurance. 

The ‘* Workman’s National Insurance Fund” may provide, with the consent of 
Government, for special funds of insurance for casual workmen engaged in the works 
mentioned in ART.1. In all cases the amount of insurance may not be less than 
that laid down in the following article. 


—104— 


ArT. 7.—In case of the death of the injured person, the sum insured for accord- 
ing to the preceding article, can never be less than :-— 

(1st.) Seven times the yearly wages, if the workman leaves parents and a wife 
with more than three childern under age. 

(2nd.) Six times the yearly wages, if he leaves a family as above, with three or 
less than three young children ; 

(3d.) Five times the yearly wages, if he leaves a wife with more than three 
children under age, or only more than three such children; 

(4th.) Four times the yearly wages, if he leaves three or less than three young 
children, with or without a wife. 

(5th.) Three times the yearly wages, if he leaves only a wife, without children 
and parents. 

(6th.) Twice the yearly wages, if he leaves only a wife, without children, or 
only parents. 

If, in consequence of the accident, the workman is absolutely and permanently 
incapacitated for work, the compensation may not be less than eight times his year’s 
wages. Incase of partial and permanent incapacity, compensation will be propor- 
tioned to the extent of such capacity, within from 20 to 80 per cent. of the 
compensation insured for absolute incapacity. In case of temporary incapacity, the 
amount insured must correspond to the daily wages, and must be paid during the 
whole period of illness up to a maximum of 360 days. 

By an agreement between the injured person and the insurance office, there may 
be substituted for the payment of a capital sum, a temporary or life income equiva- 
lent thereto. 

ART. 8.—The insurance offices have the right of action against the responsible 
parties when the mishap has occurred through fraud of the latter, recognized by 
penal judgment passed on them, in order to obtain reimbursement of the sum paid, 
deducting the premiums paid. In this same case the injured person has a right to 
obtain the compensation fixed by the present law, deducting the amount paid to him 
by the insurance office. 

ArT, 9.—In case of the insolvency of the insurance company, the parties 
responsible under ART. 1 again become liable for the payment of the sum insured. 

ART. 10.—The responsible parties are bound to notify to the judicial local 
authorities, within twenty-four hours, the occurrence of any accident, under penalty 
of a fine of from 4/7, to 10/7. sterling. In case of accidents in mines, notification 
must also be given within the same period to the district mining engineer, 

ArT. 11.—-Actions brought under the provisions of this law must be treated as 
urgent, and summarily dealt with by the courts. Judgment may always be declared 
to have provisional execution in spite of opposition or appeal, and without payment 
of caution money. 

ArT. 12.-—The injured persons will have legal assistance gratis. 

ArT. 13.—Renunciation or part renunciation of the benefits of this law is null 
and void. 

Art. 14,—Actions for damages under this law must be brought within two 
years from the day on which the accident happened, or in case of the death of the 
injured person, within two years from the date of his death, ; 

ArT. 15, -- (See below.) 


—105— 


The five Senators who compose the “‘ Central Office” of the 
Senate proposed the following alterations in the above law, 
viz., instead of ArT. 1, to substitute— 


ART. 1.—In case of accidents occasioned in the working of railways, mines, 
quarries and foundries, by the total or partial destruction of buildings, by earth slips, 
excavations, explosions, and generally by all other similar mishaps occurring 
in labor, the responsibility occurring therefrom to contractors, workers, owners, 
engineers and architects, according to the principles of the civil laws shall be regu- 
lated by the following dispositions. 


In the Government Bill as presented to the Senate, the fol- 
lowing clause has been added to Arr. 1: “In case of lease, 
usufruct enfitensis, the owner’s responsibility is understood to 
fall on the lessee or other person who has charge of the works 
according to law or agreement.” 


For ART. 6.—The sums paid by insurance offices shall be deducted from the 
sum owed by the person liable, when he has at his own cost insured his workpeople 
against all kinds of accidents, including those arising from their own negligence, 
from pure misadventure or from unavoidable circumstances. 

The civil effects of the liability lapse completely when the amount of insurance 
paid is not less than that indicated in the following Article. 

For ArT. 8.—‘* The Workman’s National Insurance Fund” may provide, with 
the consent of the Government, for special forms of insurance for casual workmen 
engaged in the works mentioned in ArT. 1. 

ART. 9 to be identical with ART. 8 of the Government Bill, and ArT. 9 of the 
latter to be suppressed : 

For ART, 12 —The injured person will have legal assistance gratis. Inthe absence 
of action taken by the person injured, the ministry may take the initiative for the 
necessary formalities avd the appointment of counsel to represent the interests of the 
person injured, either in the civil or penal courts, for the execution of the present law. 

Additional Article (No, 11.)—The persons indicated in ART. 1 shall be held 
liable for the effects of the present law, when it shall be proved that in the works 
which have given rise to the accident, they have failed to observe all the governmental 
and local regulations respecting the working of the various industries and arts, as 
well as of public and private buildings. Such responsibility ceases when itis proved 
that the accident has occurred by the sole act or negligence of the injured person, by 
pure misadventure, or by unavoidable circumstances. 


All the remaining articles are identical with those of the 
government bill, which concludes with the following articles: 
ArT. 15.—The Higher Council of the ‘‘Workman’s National Insurance Fund 
against Accidents Incidental to Labor,’’ may, with the authority of the government, 


reduce the period mentioned in § D. of ART. 10, of the convention approved by the 
law of July 8th, 1883, No. 1473 (Series 3a), and may modify the tariffs accordingly. 


—106— 


This article alludes to the “ Workman’s National Insurance 
Act,” already mentioned, of which the following translation 
gives the substance : 


WORKMEN’S NATIONAL INSURANCE ACT. 


ArT. 1.—The annexed convention, concluded at Rome on the 18th February, 1882, 
between the Minister of Agriculture, Industry and Commerce, and the societies men- 
tioned below, is appended for the foundation of a National Fund for the insurance of 
workmen against accidents incidental to labor, viz. : The Savings Banks of Milan, 
Turin, Rome, Bologna, Genoa, Venice, Cagliari, the Bank of Naples, the Bank of 
Sicily, and the Monti de Paschi of Siena. 

ArT, 2.—The Government, at the request of the said bodies, gives gratuitously 
the service of the Post Office Savings Banks for all their operations ; and the co- 
operation of the municipal authorities may be required according to the principles 
laid down for the purpose. 

ArT. 3.—Freedom from taxation is accorded to all the operations of the Institu- 
tion, as well as to donations, legacies, &c., in its favor, and to the transferof National 
Debt Bonds in which the capital of the fund may be invested, 

ArT. 4,—The National Insurance Fund is exempted from the dispositions of the 
Code of Commerce relating to commercial bodies. 


CONVENTION. 


The convention above mentioned provides for the estab-— 
lishment of the fund as an autonomous corporation, to be 
administered by the Executive Committee of the Savings Bank 
at Milan. 

The Guarantee Fund amounts to the sum of £60,000, in- 
cluding the following contributions : 


Lire. 
Milan’ Bavitigs Banksy 2 anths oiyemertuinares 600,000 
TOT OaviINes (oankK ey ete neers 100,000 
Bologus Savings, Bank say ee eye ean ek ae 100,000 
Siena. Monte.devPaschivwnyaaon ck ows 100,000 
Genoa) Savings (Bank yiorn yee en a aa 75,000 
Roman Savings Bank......... A SN alle 100,000 
Venice Savings Bank...... ASG Nil ee 50,000 
Qaclian Savings Banko oO eiiie ws eee ett 50,000 
‘Bank, of iNaplegii. sae eee ASN Aare ig 100,000 
Bank'of Sicilya) Or) eas eeenainate tt 100,000 


Lotalscanis AU POU UA peak 19.0) Na es 1,375,000 


—107— 


With 25,000 lire from the Treasury = 1,400,000 lire, or 
about £60,000. 

Insurance may be effected by all persons resident in the 
Kingdom who have reached the age of ten years, and who 
are employed in manual labor or work by the job or by the 
day. 

(Art. IX.) Insurance is individual or collective. Collective 
insurance is effected by the employers alone, by employers 
and workmen together, or by workmen only, acting in cooper- 
tion. 


(Art. X.) The insurance meets all kinds of misadventures, 
from which result— 

(a.) The death of the person injured. 

(b.) Absolute and permanent incapacity for work. 

(c.) Partial and permanent incapacity for work. 

(d.) Temporary incapacity for work exceeding one month 
in duration. 

The tariffs of the rates of insurance and of payments to be 
fixed by the Administrative Council of the Fund, set forth in 
a due set of regulations, are to be approved by Royal decree, 
and revised every five years. 

Every five years one-half of the net surplus income of the 
fund is to be proportioned pro rata to the persons to whom 
during that period a compensation has been awarded for abso- 
lute and permanent incapacity for work. 

The Insurance Fund must commence to work at the latest 
within one year from the promulgation of the law approving 
this convention. 

In connection with the foregoing is a Project of Law, in- 
itiated by Government, and laid before the Chamber of 
Deputies on the Ist of June, 1885. It is entitled, ‘ Law 
for the Institution of a National Pensions Fund for Workmen.” 
This bill, which will complete the special legisiation on the 
particular social subject under notice, is at present (April 10th, 
1886) under examination by the committee appointed to report 
upon it.. 

The following is a translation of its provisions : 


—108— 


NATIONAL WORKMEN’S PENSIONS ACT. 


ArT. 1.—A National Fund for Workmen’s Pensions is established by means of 
special autonomous funds according to the terms of ART. 3. 

ArT. 2.—Citizens of both sexes may be inscribed on this fund, if they are fifteen 
years of age, and exercise manual labor or work, by the job or by the day ; also the 
widows and orphans of workmen who have suffered misfortune, and received an in- 
demnity from the National Fund of insurance against accidents. 

ArT, 3.—The several pensions funds are formed in conformity with the present 
law, by the ordinary savings banks, specially authorized for this purpose by Govern- 
ment, 

ArT. 4.~—In order to maintain the above mentioned authority such savings 
banks must institute within itself a pensions fund with a guarantee fund devoted 
thereto, of not less than 2,000 J. 

Two or more savings banks may unite to form a society for working a pensions 
fund at a central office, provided that they together make up a guarantee fund as 
above. 

ArT. 5.—The fund may be worked by the usual staff of the establishment, but 
must be audited by a separate administration. 

The administrative staff of a fund worked by a society must be approved by 
Government. The society will not be responsible beyond the guarantee fund es- 
tablished in the preceding article, saving the personal responsibility of the adminis- 
trators. 

ArT. 6.—Each establishment or society will receive inscriptions only at the 
place authorized by Government, but may perform its operations with the persons 
inscribed and pensioned in all parts of the country. 

The persons indicated in ART, 2 may inscribe themselves on any fund whatso- 
ever. Each personinscribed will receive a book in his name, and with the necessary 
indications for recognizing his identity. 

When the pension has been liquidated, the said book must be returned to the 
bank and substituted by a pension book, 

In case of loss a duplicate of these books may be given under the usual 
cautions. 

ArT. 8 —The pension funds consist of :— 

(a.) The fees for inscription. 

(2.) The payments of, or on behalf of, the persons inscribed. 

(c.) The interest on the capital invested. 

(d.) The accumulated capital and interest to the credit of persons who die 
before having the right to a pension and without heirs, etc. 


The Government assigns to each fund an annual and even- 
tual subsidy, formed by two-tenths on the net profits of the 
Postal Savings Banks, on the profits derived from “ judicial 
deposits” and by certain sums accruing from unexchanged 
State paper money and ecclesiastical funds. . 

These subsidies will be divided amongst all the pensions 
funds in proportion to their respective number of depositors. 


—109— 





ArT. 9.—The capital and revenues of the pension funds, excepting the sums 
required for the purchase of officcs, must be invested exclusively in Italian National 
Debt Bonds, in bonds guaranteed by the Government, in Italian Treasury Bonds, in 
loan and deposit bonds, or in Italian land credit bonds, all other real or personal 
property accruing to the said funds must be converted into cash within five years and 
‘invested as aforesaid. 

ART. 10.—Subscriptions to the funds are made on demand and on payment of 
a fixed tax of two lire which may be made by a third person, with the consent of the 
interested party, the admissibility of the demands being decided upon by the admin- 
istration of the funds, without appeal. 

ArT. 11.—Depositors acquire a right to a pension on completing the fiftieth 
year of their age ; but they may postpone the use of this right until the completion 
of their sixty-fifth year, continuing their deposits until that period. 

ArT. 12.—Each depositor has a single individual account. He may at any 
time withdraw from the fund and obtain the restoration of the capital and interest 
(at 5 per cent.) accumulated to his credit, but without the Government subsidy, the 
amount of which goes to swell the sum divisible among the remaining depositors. 

ART. 13.—The deposits of persons who die before attaining the right to a 
pension, must, with the interest thereupon, be repaid to their successors, but without 
the Government subsidy, which is disposed of as in the previous article. 

By successors is understood the legitimate heirs, according to ART. 721 of the 
Civil Code, and the testamentary legatees. 

ArT. 14.—Depositors who have met with very severe misfortune (or accident) 
may withdraw their deposits, together with the interest and the Government 
subsidy. 

ArT. 15.—Each deposit may not be less than 50 centimes, nor may the deposits 
of each person exceed 200 lire (8/.) per annum. 

The deposits may continue to be made up to the date when the pension is 
liquidated. ; 

With the consent of the person interested, deposits may be made in his favor by 
third persons, corporations, or voluntary associations. 

In this case a first deposit of over 200 lire may be made per individual. 

ArT. 16.—Provides for the formation of a reserve fund out of the annual 
revenues of each pensions fund after the deduction of the fixed expenses and costs 
of administration. To this reserve will also belong the fees for inscription, the 
surplus of pensions arising from the death of depositors, the eventual Government 
subsidy, and gifts, legacies, etc., made without any particular destination. 

ART. 17.—Provides for the employment of surplus annual revenues by assigning 
them to the depositors accounts when they have made deposits of not less than 6 lire 
per annum ; including the Government subsidies rendered available by the death of 
depositors or the withdrawal of deposits as above mentioned, and the yearly state 
subsidy. Such surplus may not exceed 50 lire (2/.) for each depositor, the remainder 
going to the reserve fund. 

ArT. 18. —On reaching the prescribed age each depositor has a right to— 

(a.) A fixed pension determined by appropriate tables and corresponding to his 
age and the amount of capital accumulated to his credit ; 

(4.) To a fixed pension corresponding to a portion, at his choice, of the 
accumulated capital, together with the interest on the remaining capitai invested in 


—110— 


Italian Public Funds or Land Credit Bonds, kept in charge of the Pensions Fund, 
and becoming the property of the successors, 

(c.) To the interest on the entire accumulated capital invested, etc., as in the 
preceding paragraph. 

(z.) To the withdrawal, without pension, of the entire accumulated capital, 
with the interest thereon, and the state subsidy added therto. 

ArT, 19.—The pensions cannot be sequestrated or alienated, they can be 
demanded by deputy in case of illness attested by medical certificate, or if impedi- 
ment attested by the certificate of the Syndic of the Commune inhabited by the 
depositor, and in case of his absence from places where offices of the pensions fund 
exist. 

In cases of dispute before the law courts as to the amount of the pension, the 
claimant will have the benefit of legal assistance gratis. 

ArT. 20,—-Each pensions fund office may open with the deposit and loan fund a 
reserve account to contain the reserves guaranteed on each pension account when 
the pensioner dies with a surplus in his favor. Every five years each pension office 
will audit its accounts with the deposit and loan office. 

ArT. 21.—Each pension office must send in an annual account of all its opera- 
tions to the Ministry of Agriculture, Industry, and Commerce, with a special demand 
for reimbursement, in case of an excess of expenditure, signed by at least two 
administrators, including the director. Such reimbursement will be allowed by the 
Ministry from the deposit and loan fund. 

ART, 22 —The pensions offices may make use of the Post Office Savings Banks 
for the performance of their ordinary operations. 

ArT. 23.—The pensions funds enjoy the same fiscal exemptions accorded to the 
ordinary savings banks. They are also exempt from all registration, stamp, certifi- 
cate, and documentary taxes. 

ArT, 24.—The execution of the law will be provided for by a regulation to be 
approved by Royal Decree on the advice of the Council of State. 


In the preamble of this Bill it is observed that the principle 
of workmen’s pensions insurance by the State has not yet been 
received with much favor by public opinion in Italy, nor has 
it been recognized as sufficiently easy of adoption to give 
hopes of good results. 

With regard to the amount of the guarantee fund (Art. 4), 
viz., 2,000 J. it is considered sufficient to guarantee operations 
to the extent of at least 20,000 7., and the reserve fund to be 
subsequently substituted for the guarantee fund (Arr. 16) is 
never to be less than one-tenth of the total amount of the 
capital to the credit of the depositors and pensioners. 

As to the eventual Government subsidy (Art. 8), it is men- 
tioned that the time cannot yet be determined when such 
subsidy will be given; it will be composed of sums corre- 


—l11— 


sponding to the State paper money called “biglietti consor- 
ziali promisorii e gid consorziali,’ which shall not be 
presented for exchange according to the terms of the existing 
law for the abolition of the forced currency, and of the surplus, 
up to 800,000 J. of the revenue of the ecclesiastical funds 
belonging to the State in accordance with the law of the 7th 
July, 1886. 

The annual Government subsidy is to be formed of two- 
tenths of the net profits of the Post Office Savings Bank, 
which amounted in 1883 to 589,843 fr. (so that two-tenths of 
this sum would amount to nearly 118,000 fr. —4,7201.), and 
of the net profits derived from the employment of ‘“‘judicial de- 
posits,” which in 1883, amounted to 104,000 fr.—4,160 U. 

It will be seen from the law on the responsibility of em- 
ployers, as wellas from the Workmen’s Insurance and Pension 
Acts, that the system of compulsory insurance does not obtain 
and is not approved in Italy; but that employers are en- 
couraged to insure their workmen against accident (Ff. O. Cir. 
Qy. 8 and 9.) 

The system of voluntary insurance by workmen themselves 
is very complete, and has been fully explained. (F. O. Cir. Qy. 8.) 

By Arr. 9 of the Convention in the Workmen’s National 
Insurance Act, employers and workmen may contribute col- 
lectively or separately to the insurance fund; and it is to be 
inferred, in the absence of special dispositions, that such collec- 
tive insurance may be made in such proportions as are agreed 
upon between them (IF. O. Cir. Qy. 9.) 

By Art. 6 of the Law on the Responsibility of Employers, 
the employer avoids all responsibility for compensation when 
he has contributed to the Insurance Fund in the measure laid 
down in the following Art. 7. (F. O. Cir., Qy. 10.) 

The fact that an injury arose from the act of a fellow work- 
man is not taken into consideration in the law, so that it may 
be held to be open to argument upon the general principles of 
the Bill whether such an occurrence would relieve the emyloyer 
from liability (F’. O. Cir., Qy. 2 and 3.) 

The question of the employer’s responsibility for the con- 
dition of machinery, plant and permanent appliances of the 


—112— 


work—if not definitely stated—remedies the entire motive and 
spirit of the law, and the point is distinctly laid down in the 
additional Article (No. 11) of the alterations proposed by the 
Committee of the Senate (FI. O. Cir., Qy. 4). 

The workman injured, or his representatives, must bring his 
claim for compensation from the employer before the judicial 
authorities within two years from the date of the occurrence of 
the accident, under Art. 14; and according to the amend- 
ments proposed in the Senate (Art. 12), in the absence of such 
claim the Public Prosecutor may take up and proceed with 
the case on behalf of the person injured. (F. O. Cir., Qy. 5). 

Neither employers nor workmen are to be permitted to 
contract themselves out of the whole or any part of the pro- 
visions of the law, since it 1s specially enacted by Art. 13, that 
renunciation or part renunciation of the benefits of the law is 
null and void; and further by Arr. 5 that compensation 
claimed cannot be ceded nor sequestrated (F. O. Cir., Qy. 6). 

Generally the right to compensation appears to be treated 
as independent of the contract between the employer and the 
workmen; since no mention of such contract is made in the 
law excepting in Art 7, where the annual wages of the work- 
men are taken as the basis of the compensation for which he 
may be insured, a principle which would probably be followed 
in the legal assessment of claims for damages (F. O. Cir., 
Qy. 7). 

The employer’s liability is certainly not limited to any par- 
ticular classes of employment or classes of workmen, for ART. 
1, after specifying railways, public works, buildings, and works 
on urban or rural properties, mines, quarries, and foundries, 
adds any kinds of accident incidental to labor ; and there is no 
doubt that the law is intended to have the widest possible scope, 
and to include all classes of employment, e. g.in manufactures, 
&c., and probably even domestic service, as the Insurance and 
Pensions Acts (which are cognate to the law on the responsi- 
bility of employers) mention all manual labor or work by thejob 
or by the day. (F.O. Cir., Qy. 1). | 

It is evident that the laws above noticed are the result of 
special legislation, by the initiative of the Government, so they 


—1138— 


do not form part of the Civil, Penal, or other Codes which 
compose the common law of Italy. The law on the responsi- 
bility of employers has already undergone considerable alter- 
ation since it was first laid before the Chamber of Deputies, 
on February 19th, 1883. It was changed in its progress through 
the Lower House, and since its approval there it has been 
strongly criticised and opposed in the Senate with the follow- 
ing Arguments :—“ The responsibility of employers has long 
existed, for it is provided in the codes of all civilized nations, 
including Italy, that whosoever by imprudence or negligence 
causes injury to another person, is responsible both in the 
Civil and Criminal Courts. It is therefore unnecessary by 
special legislation to proclaim a principle already sanctioned by 
the laws of the Country, and it would be amply sufficient to 
enforce more rigorously the existing laws. Moreover the new 
Bill contains an objectionable clause which is not found in the 
Code, in as much as it imposed upon the employer the obli- 
gation of proving that there has been no imprudence or negli- 
gence on his part; this is an inversion and a violation of all the 
fundamental principles of common law and of legal responsi- 
bility. It has been answered to this, that the victims had 
not the means of proving the employer’s liability ; but it must 
be borne in mind that according to the Penal Code itis the 
duty of the magistrates and the police in case of accidents to 
search out the responsible parties and bring them to justice. 

If this duty is neglected by the public authorities, it is no 
reason for obliging the employers to furnish a negative proof, 
which in the majority of instances is well nigh impossible. 
The effect of the new law would be to create a position which 
capitalists would find to be intolerable, and the consequence 
would be to drive private industry out of the field of labor thus 
affected. It appears as though it were being sought to make 
concessions to the working classes by granting to them privi- 
leges beyond the scope of justice and equity.” 

Such are the objections which have been brought against 
the Bill. They chiefly relate to Arr. 1, and the other articles 
containing provisions on the same principle, as have been seen 
in the alterations proposed by the Committee of the Senate. 


—114— 


On April 14, after a prolonged and important debate, the 
Senate was prorogued by Royal Decree, without having voted 
at all upon the Law on the Responsibility of Employers. 

The liability of ship owners for injuries suffered by sailors 
in their employment is governed by special legal provisions 
contained in the Commercial Code, Art. 537, and those imme- 
diately following, to the effect that: 

“Sailors who become ill, or are wounded in the service of 
the ship, will receive their wages, and their medical expenses 
will be paid by the owners. If the sailor has to be landed, 
the captain must deposit with his consul the amount con- 
sidered necessary for his cure and return home; but in no 
case has the sick or injured seaman a right to more than four 
months’ wages and hospital expenses. 

If the sailor is injured or falls sick from his own fault, or 
whilst ashore without leave, he must pay his medical expenses 
himself, but the captain must advance the money to him. In 
case of the death of the sailor during the voyage, his wages 
must be paid to his heirs in proportions determined by the 
period for which he has been engaged. 

Foreigners if duly and properly shipped on Italian vessels 
are treated on precisely the same footing as Italian subjects.” 

The legislation on this subject is very similar to that of 
Great Britain, but not precisely identical with it. 

Under the Code of Mercantile Marine (Art. 56), ship owners 
are bound to contribute to the Merchant Navy Invalids’ Fund. 
They are not liable for the repatriation of sailors shipwrecked 
abroad, or landed through stress of circumstances, such as the 
abandonment of the vessel; but these expenses fall on the 
value of the salvage. 

Captains who break the above rules are liable to punish- 
ments set forth in other Articles of the Code, and by Article 
369, if the captain or owner, through negligence or fault of his 
own, causes any accident resulting in the death or injury of a 
sailor or other person on board, he is liable to six months’ 
imprisonment and to suspension or dismissal from the service. 

Thus it appears, that, according to the law, the captain is 
criminally liable for injury arising from his fault or negligence, 


—115— 


and the hospital expenses and wages must Le paid within the 
limits above mentioned, but no further compensation is due 
from the shipowner under the laws governing shipping; and 
the law on the responsibility of employers, which has been 
before the Italian Parliament, would probably not be held to 
affect the shipowners. 

In Belgium there is no special legislation respecting the 
liability of employers to compensate workmen injured in their 
service. The responsibility of employers is regulated by 
Articles 1147, 1148, 1382, 1883 and 1384 of the Civil Code, of 
which the following are translations :— 

ArT. 1147.—The defendant (‘* debiteur’’) is obliged, if needs be, to pay damages 
and interest, either on account of the non execution of the obligation, or on account 
of delay in executing the same, in every case in which he does not prove that the 
non execution is the effect of some cause which cannot be imputed to him, and that 
there has also been no bad faith on his part. 

ArT. 1148,—There can be no claim for either damages or interest where by reason 
of superior force (‘‘ force majeure’’), or of some fortuitous circumstance, the defendant 


has been prevented from giving or doing that which he was bound to do, or hasdone 
that which he was forbidden to do, 


ART. 1382.—Every act committed by any person, which causes injury to 
another, obliges him, through whose fault this injury occurred, to repair it. 

ART. 1383.—Every person is responsible for the injury caused by him, not only 
by his own act, but also by his carelessness, or by his imprudence. And, lastly, 

ArT. 1384.—Every person is responsible not only for the injury caused by hisown 
act, but also for that caused by the acts of persons for whom he ought to be respon- 
sible, or arising from appliances in his keeping. 

The above is the existing law defining the lability of em- 
ployers—a liability extended to all cases, and not limited to 
any particular industry or class of workmen. 

A movement is, however, on foot for extending the respon- 
sibility of employers, as defined by the Code, in cases of 
accidents to workmen in their service, and the Labor Commis- 
sion, which is now examining into the causes of the industrial 
crisis in the country, is inquiring as to the advantages which 
might accrue from special legislation on the subject. At a 
meeting held near Mons, in February last,* a petition was ad- 
dressed to the Chamber of Representatives and to the Govern- 
ment, praying that the employers should be held generally 


* 1886, 


—116— 


responsible for accidents to workpeople in their employ. The 
demand does not evidently refer to accidents caused by the 
imprudence, negligence, or fault of the employers or of his 
agents. In such cases the workmen already have their redress 
under articles 1882-4 of the Code, cited above. The para- 
graph, “on est responsable du dommage causé par le fart des 
personnes dont on dot répondre, ou des choses que lon a sous sa 
garde,” renders an employer responsible for all accidents which 
can clearly be traced, either (1) to the fault of an overseer set 
over the injured workman, or of any person holding in the 
business a general position of authority ; or (2), to a defective 
condition of the machinery, plant, or permanent appliances of 
the work. Nor can the demand refer to accidents which, in 
the words of Arr. 1148, are clearly attributable to “force 
majeure,” or to ‘un cas fortuit;’ or to those which are 
solely caused by the imprudence of the injured man himself. 

The Mons petition must, therefore, refer to that numerous 
class of accidents, the causes of which are uncertain, and in- 
capable of positive proof. The advocates of the petitioners 
argue that, as between employer and employed, there does or 
should exist a covenant by which the master guarantees to his 
workman his safety during, and on account of his work; that 
on the employer should fall the onus probandi in all cases in 
which superior force, fortuitous circumstances, or the careless- 
ness of the injured person can be pleaded; and that in all 
doubtful cases the responsibility and damages should fall on 
the employer, on the ground that he is the chief partner in the 
business operations in which he and his workpeople are alike 
engaged. 

This doctrine has, however, not been accepted by the Bel- 
gian law courts. One of the leading counsel of the Brussels 
Appeal Court expresses himself in the following terms thereon : 

“ Hriger en présomption légale que l’exploitant est en faute ; 
s'il ne prouve pas le cas fortuit, ou la faute personelle de la 
victime c’est exposer & faire payer des dommages intéréts par 
une personne qui ne les doit réellement pas: Ce systéme peut 
évyidement conduire, dans la pratique, 4 de fréquentes in- 
justices. 


—117— 


“Tl a peut-étre le caractére d’un expédient convenable, utile 
au point de vu sociale ; jamais on ne pouvra le justifier comme 
derivant d’une justice exacte.” 

Generally speaking, the existing right of a workman to claim 
compensation from his employer, in cases of accidents, is 
governed by the above provisions of the Civil Code; and, 
though the workmen’s societies desire to considerably extend 
the employer’s liability, and to treat the workman’s right to 
compensation for all accidents as a necessary outcome of the 
covenant between employers and employed—unless the em- 
ployer can prove ‘‘ force majeure” or carelesness of the in-. 
jured man—these pretensions are not recognized by the law. 

In the event of a workman being injured, it is not required, 
as a condition of his being entitled to compensation from the 
employer, to give any special notice of the facts, or of his 
claim. He must either come to terms with the employer 
himself, or, failing this, must bring an action against him. 

It is not permitted for employers and workmen to contract 
themselves out of any provisions of the Civil Code, bearing on 
the relations of capital and labor. The tribunals in each case 
have to decide whether the fact that a workman was injured 
by the act of a fellow workman makes any difference as to the 
employer’s liability. 

With regard to the system of insurance against accidents 
prevailing in this country, there is a great number of working- 
men’s friendly and provident societies to which all the chief 
Belgian industries are affiliated; these societies are of two 
classes. 

(1.) General Provident Societies (‘‘Caisses Communes de 
Prévoyance”’) so called because formed by the employers in 
each of the six sub-divisions of the mining districts; these 
societies, founded about fifty years ago, grant life pensions to 
miners incapacitated from work in consequence of accidents ; 
and, in the event of their death in consequence of such accident, 
to their widows and orphans. 

(2.) Private Friendly Societies (‘ Caisses particuliéres de 
Secours Mutuels”’ ) attached to each separate mining establish- 
ment, founded for the purpose of granting temporary assistance 
to injured or sick workpeople. 


—118— 


These societies, although receiving encouragement and 
assistance from the government, are not obligatory and state 
instituted as are the ‘‘ Berufsgenossenschaften” of Germany. 
Similar associations exist in nearly every civilized industrial 
country. A consideration and history of them, although highly 
instructive and interesting, are somewhat foreign to the subject 
at present under consideration. A full account of these socie- 
ties as they exist in Belgium will be found in the English 
Parliamentary Papers. 

In the Netherlands, the fundamental law is taken from the 
French Code Napoleon. Here we find the same provisions 
re-enacted in nearly the same phraseology. They are very 
general in their scope. 

The articles of the ‘Code de Commerce” may be said to 
bear more directly upon the lability of owners of ships, freight 
and cargo, towards the officers and sailors employed on 
board. . 

Any of the crew falling ill during the voyage, or who may 
be wounded or mutilated in the ship’s service, or in an action 
with the enemy or with pirates, is entitled to his wages and to 
surgical‘or;medical treatment, and, in case of mutilation, to an 
indemnity, to be fixed by a judicial arbitration, if there is any 
dispute as to the amount. 

If the sick or wounded person is unable to proceed on the 
voyage, without danger, the treatment, etc., is to be continued 
until he is cured, the captain providing for the expense before 
starting. Heis entitled to his wages not only during treatment, 
but until the day when he might have returned to the port 
from which the ship started, as well as to the cost of his return 
voyage. 

If, however, an officer or sailor falls ill, or is wounded or 
mutilated on shore, when absent from his ship without leave, 

the expense of his treatment, etc., must be paid by himself. 

An officer or sailor captured on board his ship and made a 
slave, cannot claim the price of his ransom, but is entitled to 
his wages up to the date of his having been taken and enslaved. 
If taken and enslaved when sent out to sea, or on duty on 
shore in the ships service, he is entitled to the full payment 


—119— 


of his wages, and, if the ship arrives safely at its destination, 
to an indemnity for his ransom. 

The Swiss Law concerning the liability of employers. has 
been in force since June 25, 1881; and regulates the execution 
of Arr. 5 of the Federal Factory Act, dated March 23, 1877, 
which had established the principle of the liability of em- 
ployers of labor (in the sense of that Act). 

The representative of her Britannic Majesty’s Government 
gives the following categorical answers to Lord Roseberry’s 
circular :— 

1. Is the employer’s liability limited to any particular 
classes of employment or classes of workmen; and, if so, to 
what classes ? | 

Answer - Yes; the liability of employers is limited to those 
classes that are subject to the provisions of the Factory Act, 
dated March 23, 1877, which says: | 

Art. 1. Every industrial establishment is considered a fac- 
tory, and as such is subject to the provisions of the present 
law, where a number of workpeople are occupied regularly and 
at the same time in closed rooms outside of their own dwel- 
lings. 

2. In what cases does the fact that an injury arose from 
the act of a fellow-workman relieve the employer from liability ? 
Answer : The employer is not relieved from liability if the 
injury arises from the act of a fellow-workman. 

3. Does it make any difference if the fellow-workman was 
in authority over the workman injured, or in a position of 
authority in the employer’s business generally ? 

Answer « It makes no difference whatever. 

4. Is there any difference between the employer’s responsi- 
bility for the condition of machinery, plant and permanent 
appliances of the work, and for specific acts or defaults of 
workmen ? | 

Answer: The law makes no difference, but the liability of 
the employer is reduced if part of the fault falls upon the in- 
jured workman; more especially if the latter has acted against 
the factory rules, or if he has discovered a default in the 
machinery, which was the cause of the accident, without having 


—120— 


informed the employer himself or one in authority over him, 
except the injured man could prove that the employers or the 
superintendent were already cognizant of the faulty and 
dangerous condition of such machinery (vide Arts. 5, 6). 

5. Is the workman injured required, as a condition of being 
entitled to compensation from the employer, to give any 
special notice of the facts of his claim ? 

Answer : Yes; and the claim has to be lodged within one 
year from the day on which the injury or death took place (vide 
Art. 12). 

6. Are employers and workmen permitted to contract 
themselves out of the whole or any part of the provisions of the 
law on the subject? 

Answer - No; any such stipulations by means of printed 
rules, publications or special arrangements are not legally 
binding (vide Arr. 10). 

7. Generally, is the right to compensation treated as arising 
out of the contract between the employer and workman, or as 
independent of it? 

Answer : As independent of it. The right to compensation 
arises simply out of the relation between employer and em- 
ployed in the sense of the Factory Act of March 23, 1877. 

8. How far does a system of insurance by workmen them- 
selves against accident prevail, compulsory or otherwise? 

Answer ; A system of insurance by workmen themselves, in 
most cases with the concurrence of the employer, prevails 
pretty generally, in some factories compulsory, in others volun- 
tarily. There are, however, no statistics to show the exact 
proportion between the two systems. 

9. In what proportions do employers and employed respect- 
ively contribute, voluntary or otherwise, to insurance funds? 

Answer: The usual proportion seems to be one-half re- 
spectively, to be contributed by employer and employed. 

10. To what extent does the employer reduce his liability 
by contributing to the insurance fund ? 

Answer: If the employer has contributed to the extent of 
one-half to the insurance fund, the whole amount paid to 
the injured workman or his heirs out of such funds is to be 


me 


deducted from the compensation obtained from the employer. 
On the other hand, if the employer has contributed less than 
one-half, such a sum only is deducted from the compensation 
as stands in proportion to the employer’s contribution. The 
employer can claim such deductions only where the insurance 
to which he has contributed comprises every kind of accident 
and illness (vide Art. 9). 

P12) 13: 

Answer ; For obvious reasons the Swiss law has no pro- 
visions for these cases. 

There is a wide spread conviction amongst workmen that 
the provisions of the existing law are insufficient. On the 25th 
March, 1£85, the Federal Chambers accepted the following 
motion :— 

1. To revise the law of the 25th of June 1881, in the 
direction of an extension of the liability of employers, and 
with a view to facilitate the obtaining of compensation for 
injuries received. 

2. To examine the question and report on it whether a 
general compulsory insurance of workmen against accidents 
would be desirable. 

The Commercial Department of the Federal Council having 
drawn up a new Bill, the same was laid before a representative 
commission of eight members on the 21st and 22nd April, 
1885, who arrived at the conclusion that further inquiries and 
researches are absolutely necessary. Since then the govern- 
ments of the different cantons, the sections of the “Swiss 
Commercial and Industrial Union,” the delegates of working- 
men’s associations, as well as private individuals, have pro- 
vided materials and contributions which. will’ be utilized for 
the drafting of a fresh Bill to be laid before the Federal 
Chambers this summer (1886). ‘The present law will therefore 
soon be superseded by one of a more stringent, and probably 
more extensive character. 

The Commission chosen to report upon and to amend the law 
relating to the lability of employers, accepted on May 13th, 
1886, at the last of four sittings, the following fixed propositions, 
submitted by M. Droz, Federal Councillor : 


—122— 


1. Extension of the liability to a number of other dangerous 
industries (builders, workers in quarries, mines, carriers, etc). 

2. Obligation of the employer to give notice to the authori- 
ties in case of accident. 

3. Obligation for the employer to give such notice also in 
case of a compromise with the injured workman. 

4, Right of intervention on the part of the Government for 
the purpose of protecting the interests of workmen, if the 
compensation arising out of the compromise is deemed in- 
sufficient. 

5. Gratuitous legal advice to impecunious workmen or 
their heirs in case of accident. 

It is considered possible to lay this Bill before the Fed- 
eral Chambers and to pass it during the coming session, June, 
1886. 

If the fact were not a matter of common knowledge a 
cursory perusal of the history of the law regulating employer’s 
liability, both here and abroad, would reveal that dissatisfac- 
tion with the existing laws is both wide spead and strong, 
In those countries where the legislatures are most conservative 
in changing legal relations and liabilities, as well as where the 
most broad and liberal protection is allowed the injured, 
concessions have been made. 

Whether we consider that this feeling of dissatisfaction is 
due to cases of actual hardship caused by defects in the 
existing law, or to that general sentiment of restlessness and 
antagonism to the so-called “ capitalist class” that has too 
strongly taken hold of the working people as a whole, we can- 
not shut our eyes to the fact of the power of the askers and 
the determined nature of the demand. In every society 
organized on popular lines, any class of men with real or 
supposed grievances, will seek to right themselves by the 
exercise of the franchise. That this means of indemnifying them- 
selves for the results of injuries incurred in the prosecution of their 
work has been taken, the whole course of the history of the refor- 
matory legislationshows. Itthenceases to bea question whether 
changes are expedient and in accord with logic and philosophy, 
they are bound to come, they have already come in many 


—123— 


jurisdictions and nothing leads us to suppose that more of the 
same kind will not follow. Legislators shall most profitably 
spend their time and wisdom in devising methods and expe- 
dients rather than in debating the general question. 

There are three principal ways in which civilized nations 
have endeavored to solve this problem that may, for lack of 
@ more convenient nomenclature, be termed respectively the 
French, the German and the Anglo-American. 

The former method prevails in those Latin countries that 
have felt the influence of the French arms and civilization, and 
have based their legal systems upon the Napoleonic Code. 
This compilation, like the Roman codifications, its predeces- 
sors, is, perhaps, more perfect and systematic as a philo- 
sophic scheme than the English or common law, but, as in 
the case in question, by adhering strictly to logical deduc- 
tions from general hypotheses, it appears, to the English legal 
mind, to sacrifice somewhat of practical utility and justice. 
For instance, we cannot avoid the feeling that to base the 
liability of employers upon that very general provision of the 
code that makes a man responsible not only for the injury 
he causes by his own actions, but also for that which is 
caused by the actions of persons for whom he is answerable, is 
too general to be applied to the relation of master and servant. 
Such a provision would render a master responsible for the 
injury inflicted by one laborer upon his fellow while working 
at the same forge. The common law holds with more practi- 
cal sense and justice that men in such a position have better 
means of knowledge of each others habits and traits than the 
master has, and éan more effectually guard against each others 
negligence, and therefore imposes the duty of caution upon 
them. If a man knowingly labors with such a fellow, his 
own carelessness can be justly said to cause his injury. But 
such protection, although so broad and so burdensome to the 
employer, does not satisfy the popular demand. It stimulates 
the cry for further concessions. The danger is that these will 
be granted to a degree where all ideas of justice will be lost 
sight of, and the rapacity of the so-called “ weaker class ” will 
render the position of the employer intolerable, and thus 
withdraw capital from industrial enterprises. 


—124—. 


The second method is one of compulsory insurance. The 
employers and workmen are banded together, and compelled 
by the State to make pecuniary provision for cases of acci- 
dent and death. This system is but part of the programme of 
that school of social scientists that holds that the State should 
regulate all matters of private as well as of strictly public con- 
cern. It finds its example in the ancient Spartan regime, 
where even the domestic relations were the subject of State 
regulation. But Sparta, although a great, military power, 
was not so pleasant a place of abode as Athens to men pos- 
sessed of a natural desire for freedom of action, nor did she 
leave so enduring a trace upon the page of the world’s history. 
The utopian dreams of philosophers have rarely made good 
working rules for social systems, and the gigantic growth and 
prosperity of free America is an immortal witness to the truth 
of the maxim that the best government is the one that governs 
least. Such a system of insurance may be tolerated in a 
country where the iron helmet is the ordinary head-dress 
of the majority of the population, and where the spirit of 
militarism pervades all walks of life; but even there that 
spirit is not entirely acceptable, for it yearly expatriates 
thousands who seek our less paternal shores. 

Nor is it plain that such a system of insurance shall be 
permanently successful. In the first place, although it is ex- 
cellently planned, it is costly and difficult of execution. Nor 
will the burden be thrown upon the employers in the end, for 
the rate of wages will be lowered at least in proportion to the 
amount of the premiums, and probably much more. Such a 
system is not reconcilable with the theory that the relation 
and liability of master to servant is one of contract. It rests 
upon the idea that there is a feudal or baronial relation be- 
tween them. Any such ex; edient would be foreign alike to the 
genius of our laws and institutions, as well as to the instincts 
of the Anglo-Saxon race. 

The third method seeks to remedy any defects in the law 
by minutely regulating the exploitation of those industries 
that experience has shown to be dangerous to those employed 
therein. It recognizes that the State has the right to interfere 


—125— 


in the interest of the welfare of the laborer, but does not over- 
step the bounds of reason. This plan we believe to be the 
most expedient as well as the most effective. It interferes 
as little as possible with private rights and relations and yet 
grants adequate protection. It has the merit, lacking in the 
other systems, of preventing accidents rather than of allowing 
compensation for the results of them. The method is elastic 
and can be extended to meet the requirements of new develop- 
ments in industries without violence to the logic of the legal 
system, It is in the development of this system that we look 
most confidently for the solution of the present question, a 
question that Sir Henry Jackson upon the floor of the English 
legislature pronounced to be one of the most difficult problems 
ever presented to parliament. The question is indeed a burn- 
ing one, one that merits the attention of the most impartial 
and just of our jurists and philanthropists, one in which 
humanity has a deep concern and in the solution of which we 
must look for the well being and contentment of the larger 
portion of society. 


FInIs. 








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